Australian Capital Territory v ACT Civil and Administrative Tribunal - [2015] ACTSC 370

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Australian Capital Territory v ACT Civil and Administrative Tribunal & Anor
Citation:	[2015] ACTSC 370
Hearing Dates:	28 August, 11 September 2015
DecisionDate:	1 December 2015
Before:	Mossop AsJ
Decision:	The proceedings are dismissed with no order as to costs.
Catchwords:	JUDICIAL REVIEW – Application for order in nature of prohibition to prevent tribunal member from further hearing complaint of discrimination – test for apprehended bias by reason of interest or conduct – application of test to tribunal – assessment of aggregated effect of disclosures, statements and conduct of tribunal member – distinction between predispositions or personal views and inability to remain open to persuasion – application dismissed
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 62, 79 Discrimination Act 1991 (ACT) ss 7, 8, 10 Human Rights Act 2004 (ACT) Human Rights Commission Act 2005 (ACT) ss 51, 53A, 53E, 78
Cases Cited:	Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Isbester v Knox City Council (2015) 89 ALJR 609 Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2010] ACAT 19 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 O’Hara v Independent Liquor & Gaming Authority [2014] NSWSC 880 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 R v Lusink; Ex parte Shaw (1980) 55 ALJR 12 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Minister; Ex parte Epeabaka (2001) 206 CLR 128 Wang v Australian Capital Territory(Discrimination) [2015] ACAT 5 Webb v The Queen (1994) 181 CLR 41
Texts Cited:	Aronson and Groves Judicial Review of Administrative Action (5^th ed)
Parties:	Australian Capital Territory (Plaintiff) ACT Civil and Administrative Tribunal (First Defendant) Qinglin Wang (Second Defendant)
Representation:	Counsel Ms K Eastman SC and Ms H Robinson (Plaintiff) Mr M Hassall (First and Second Defendants)
Solicitors ACT Government Solicitor (Plaintiff) Sparke Helmore (First and Second Defendants)
File Number:	SC 275 of 2015

The application

The plaintiff, the Australian Capital Territory, has sought, by originating application filed 28 July 2015, an order in the nature of prohibition directed to a senior member of the first defendant, the ACT Civil and Administrative Tribunal, so as to prevent him from further hearing a complaint of discrimination made under the Discrimination Act 1991 (ACT) (Discrimination Act). The basis for the application for an order in the nature of prohibition is that the proceedings, if permitted to continue, would involve a denial of procedural fairness by reason of an apprehension of bias.

The proceedings before the Tribunal

The proceedings before the Tribunal arise out of a discrimination complaint made by the second defendant, Qinglin Wang (Dr Wang), alleging that the ACT Government Health Directorate (the Directorate) contravened the Discrimination Act. The complaint recorded:

I feel that I have been given unfair treatment because of my Chinese background and my age (DOB: xx/xx/xxxx) during the junior medical officer recruitment campaign for 2014 by the ACT Government Health Directorate from June 2013 to the present.

The complaint asserted that Dr Wang is an Australian citizen living in Canberra since 2001. Previously, when resident in China, he was a qualified specialist in the field of neurology for 15 years in a tertiary teaching hospital called Tianjin Medical University of China. He completed the requirements for registration with the Australian Health Practitioner Regulation Agency including the Australian Medical Council multiple choice question exam and the Australian Medical Council clinical exam as well as an occupational English test. He applied for a position as an intern at the Canberra Hospital. Applicants for those positions were divided into a number of categories and positions were offered to those in the earlier categories before moving on to each later category. Dr Wang was placed in category 8, the last category, being a medical graduate of an overseas university who had successfully completed the requirements for registration. He complained of discrimination on the basis of age and his Chinese background because he had not had an opportunity to compete on the basis of his medical knowledge and clinical skills with other candidates in categories higher than category 8. He also complained about his application for a position as a resident medical officer in ACT Health, contending that he had been discriminated against based on his age and Chinese background and had not had any opportunity to show his medical knowledge and clinical skills or compete with other candidates.

The response provided by the Directorate to the ACT Human Rights and Discrimination Commissioner (the Commissioner) disclosed that there were 463 applications for intern positions in 2014. 367 of those applications were unsuccessful. It also described the categories by which applications for intern positions were assessed. Those categories were described in the Directorate’s response as follows:

Priority List
Category 1 Guaranteed First Round Offer
Graduates of the Australian National University Medical School who demonstrate their commitment to working in the ACT by not making any other applications for internship to any other Australian State or Territory (or other international institution), with the exception of an application for the Rural Preferential Recruitment Scheme.

Category 2 Guaranteed First Round Offer (capped at five)
Domestic graduates of NSW Universities.

Category 3 First Round Offer - Not Guaranteed
Graduates of other Australian Universities who completed Year 12 Studies in the ACT.

Category 4 First Round Offer - Not Guaranteed
Graduates of the [Australian National University Medical School] who were not offered a Category 1 placement.

Category 5 First Round Offer - Not Guaranteed
Graduates of other Australian Universities.

Category 6 First Round Offer - Not Guaranteed
Graduates of Australian University campuses outside of Australia accredited by the Australian Medical Council.

Category 7 First Round Offer - Not Guaranteed
Graduates of New Zealand Universities.

Category 8 First Round Offer - Not Guaranteed
International Medical Graduates (IMGs).

As will be apparent from an examination of this list, it has the effect of giving preference to persons with an association with the Australian Capital Territory or New South Wales and, in particular, to those who studied medicine in Canberra at the ANU Medical School.

The letter also identifies that Dr Wang was not eligible to apply for a resident medical officer position because he had not completed an internship. It also addressed the complaint of discrimination on the grounds of race and age. It is not necessary to set out in any further detail the content of the Directorate’s response.

On 1 May 2014 a delegate of the Commissioner decided that the matter was not suitable for referral to conciliation. The delegate noted that under s 51 of the Human Rights Commission Act 2005 (ACT) (HRC Act) a referral to conciliation could only be made if the Human Rights Commission (the Commission) was satisfied that the complaint was likely to be successfully conciliated. As a result, the delegate decided to close the complaint pursuant to s 78(1)(f) of the HRC Act which permits the Commission to close a complaint if the Commission considers that conciliation is unlikely to succeed. Notwithstanding this decision, the delegate, in his letter of 1 May 2014, then proceeded to set out the nature of the complaint, the Directorate’s response and some opinions about whether or not the conduct amounted to direct or indirect discrimination for the purposes of the Discrimination Act. The letter from the delegate then noted that upon closure of the complaint the complainant had 60 days from the date of the letter to require the Commission to refer the complaint to the Tribunal.

On 22 June 2014 Dr Wang requested the Commission to refer the complaint to the Tribunal under s 53A of the HRC Act.

It is not clear what directions the Tribunal made after the complaint was referred to it. However, on 16 September 2014 Dr Wang filed with the Tribunal some submissions in the form of a document entitled “Statement of the offence”, the documents that were before the Commission and some additional documents. On 9 October 2014 the Territory filed its submissions entitled “Respondent’s Outline of Submissions”.

On 25 November 2014 there was a hearing before the Tribunal constituted by a senior member (the Senior Member). I will describe in more detail what occurred on that day later in these reasons. Ultimately the position reached was that the Senior Member reserved his decision on the question of whether or not Dr Wang had established a prima facie case of “indirect discrimination” under s 8(1)(b) of the Discrimination Act. Any question of reasonableness under s 8(2) would be addressed at a subsequent hearing in the light of whether or not either party sought to appeal from the finding as to whether or not there had been indirect discrimination.

On 16 January 2015 the General President of the Tribunal, acting on behalf of the Senior Member pursuant to s 62(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), published the Senior Member’s reasons for the conclusion that there had been both direct and indirect discrimination against Dr Wang on the grounds of his race. The only order that was made was:

1.On being satisfied that the Respondent has both directly and indirectly discriminated against the Applicant on the grounds of his race by implementing the priority policy and placing the Applicant in Category 8, the Registrar is directed to list the application for further directions as soon as possible.

On 30 January 2015 the proceedings were again before the Senior Member. At that point the Territory was considering whether or not to appeal or review the decision that had been made by the Senior Member. Dr Wang had by that time instructed solicitors who submitted that the appropriate point for any appeal was when the matter had been finally determined. Ultimately the proceedings were adjourned for further directions following the lodgement of an appeal.

On 5 February 2015 the plaintiff purported to file a notice of appeal within the Tribunal pursuant to s 79 of the ACAT Act. That appeal was listed before the Appeal President of the Tribunal on 6 March 2015. I have said “purported” because there appears to me to be a real issue as to whether or not, in the light of the terms of s 79, such an appeal could be brought at that stage. When the matter was before the Appeal President the position of the Territory was that the appeal should proceed. The position of Dr Wang was that the matter before the Senior Member should be finally determined before any appeal. The formal orders made on that occasion appear to have been:

1.The matter is to be sent back to [the Senior Member] for a directions hearing so the proceedings before him can be finalised.
2.The appeal will be put on hold until the proceedings before [the Senior Member] are concluded.
3.Liberty is given to the appellant to amend the appeal after the matter has been concluded before [the Senior Member].

In the absence of a ruling on the competence of the appeal it is not clear precisely what the basis for these orders was. The Appeal President referred to an earlier decision of the Tribunal that was consistent with a finding that the appeal was incompetent: Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2010] ACAT 19. In those circumstances it is not clear why the appeal was merely “put on hold”. However it is not necessary to further consider that issue for the purposes of the current application.

The proceedings were then before the Senior Member again on 19 March 2015. On that occasion the parties were directed to compile “an agreed list of relevant stakeholders who will be invited to give evidence on the issue of the reasonableness of the respondent’s policy” and then to approach the registrar of the Tribunal to fix a suitable hearing date.

On 15 June 2015 the proceedings were again listed before the Senior Member. That listing was for a directions hearing. The outcome of the directions hearing was that the registrar of the Tribunal was to list the matter for hearing for one day on a date to be fixed in consultation with the parties. The Tribunal noted that neither party intended to file further evidence on reasonableness and noted how the particular witnesses were going to give evidence. I will return later to what occurred at the end of this hearing.

On 8 July 2015 there was a further hearing before the Senior Member to address the question of whether or not he should disqualify himself from the further hearing of the proceedings. This was an issue raised in a letter from the plaintiff’s solicitors to the Tribunal dated 24 June 2015. The Senior Member gave reasons explaining why he declined to disqualify himself from the further hearing of the proceedings. He then made some further directions in relation to the matter. I will return to those reasons later.

The proceedings in this Court were commenced on 28 July 2015.

Senior counsel for the plaintiff referred me in particular to portions of the transcript of the proceedings on 25 November 2014 and 15 June 2015 as well as aspects of the reasons given by the Senior Member on 8 July 2015 for declining to disqualify himself from the further hearing of the proceedings. The ultimate submission was that collectively those matters indicated that the continuation of the proceedings before the Senior Member would involve a denial of procedural fairness by reason of an apprehension of bias. It is most convenient to set out in more detail those aspects of the transcript and the reasons referred to when identifying the plaintiff’s submissions in relation to those matters.

The relevant test

The test to be applied is that set out in the decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 (‘Ebner’):

6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Footnotes omitted)

The plaintiff also referred to the earlier statement in the judgment that the requirement for impartiality also applies outside the judicial system but that the manner in which it is applied must take into account the difference between court proceedings and other kinds of decision making (at 343-344):

4The principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision maker. Most often it now finds its reflection and application in the body of learning that has developed about procedural fairness. The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making.
(Footnotes omitted)

The statement of the “two mights test” can be taken, if based upon a bare application of those words alone, to be a test which might involve little to trigger its application. However the authorities have emphasised the fact that an apprehension must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262; R v Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14.

In Webb v The Queen (1994) 181 CLR 41 at 74 Deane J provided what the plurality in Ebner (at [24]) described as a convenient frame of reference by which to consider the circumstances in which an apprehension of bias might arise. Deane J said:

The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
(Footnotes omitted)

While, as the Court recognised in Ebner, this categorisation may not be comprehensive, in the present case the type of bias alleged to be apprehended would be that which arises by reason of “interest” or “conduct”.

The authorities recognise that the requirement for impartiality is a requirement which does not exclude the existence of predispositions or inclinations for or against an argument or a conclusion. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-532 (‘Jia’) Gleeson CJ and Gummow J said:

71... Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias: as to members of the Commonwealth Conciliation and Arbitration Commission, see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546.
72The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 91, per Deane J; at 100, per Gaudron and McHugh JJ and Johnson v Johnson (2000) 201 CLR 488. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
(Footnotes included as text)

The decision in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, referred to in the above extract, was a unanimous decision of the High Court dismissing a motion for an order nisi for prohibition to the Commission in circumstances where members of the Commission had impliedly indicated in reasons given in an earlier case that they tended to favour the adoption of the principle of equal pay for both sexes as soon as the economic and industrial situation would permit. When that very issue was before the Commission, prohibition was sought on the grounds of an apprehension of bias. The Court (at 553-554) stated the test as follows:

Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.

Addressing the circumstances of the case the Court concluded (at 555):

But whatever the right view as to the actual reasons for the Commission's decision, what was said by the President was clearly open to the inference that the minds of the members of the Commission on whose behalf he spoke tended to favour the adoption of the principle of equal pay so soon as the economic and industrial situation of the community would permit: and to the further inference that the decision in the National Wage Case was an expression of that tendency of mind. But, in our opinion, the existence of such a general tendency of mind would not disqualify a member or members of the Commission from sitting in a matter in which a decision as to the awarding of equal pay had to be considered. Certainly, in our opinion, neither the existence nor the expression of such an attitude of mind as we have mentioned would justify a reasonable apprehension that a member of the Commission might not bring or be able to bring to the work of the Commission involving the question of equal pay a fair and unprejudiced mind able with judicial propriety to decide the matter placed before it. It is of course the duty of the members of the Commission always to have and to display a willingness, indeed an anxiety, to give full and fair consideration to every relevant argument that may be addressed to them for a revision or even an abandonment of announced opinions. But the mere expression of opinion upon a general question of policy and even the fact that a step has been taken in furtherance of such a policy, if that be the right view of what the Commission did and the President said, give, in our opinion, no reasonable ground for a lack of confidence in the integrity of future decisions upon or involving the question of equal pay.

Similarly, decision-makers are not required to be free of social or political views. The position is summarised in Aronson and Groves Judicial Review of Administrative Action (5^th ed) (at [9.200]):

Decision-makers may hold predispositions in the form of social or political views so long as they are not held so strongly as to prevent them approaching the matter with a fair measure of objectivity. For example, teetotallers can try liquor licence applications if they are not implacably opposed to all applicants. To hold otherwise would be to use the neutrality ideal to present an untrue picture of the law and the adjudicative process. A key question in such cases is whether persuasion is a genuine possibility.
(Footnotes omitted)

In Re Minister; Ex parte Epeabaka (2001) 206 CLR 128 (‘Epeabaka’) a member of the Refugee Review Tribunal had written on his home page on the Internet that applicants often “lie through their teeth … in their desperation to find a better life”. Notwithstanding that the judgment of the plurality described these remarks as “regrettable” the Court found that those comments would not lead to a reasonable apprehension that the member might not have brought an impartial mind to bear upon the decision which he had to make in relation to the applicant which ultimately turned upon an assessment of the applicant’s credibility.

A recent example of the circumstances in which a tendency of mind or predisposition was held not to give rise to an apprehension of bias is O’Hara v Independent Liquor & Gaming Authority [2014] NSWSC 880 (‘O’Hara’) in which comments made in a public speech by the Chairman of the Authority disclosing that he had (at [5]) “never … gambled with money at all”, “hate[d] gambling”, “despise[d] poker machines” and was “a dedicated non-gambler” were, in the overall context in which they appeared, not sufficient to satisfy the test for disqualification because consideration of the context showed that the Chairman was (at [57]) “open to persuasion” and that his opinion was not applied without giving all relevant matters consideration.

The recent decision of the High Court in Isbester v Knox City Council (2015) 89 ALJR 609 (‘Isbester’) provides an illustration of a case where an interest giving rise to an apprehension of bias was identified not because of some material interest in the outcome of the proceedings but rather because of the previous involvement by the decision-maker as a prosecutor in related proceedings. In Isbester the close involvement of a council officer with the prosecution of offences relating to a dog led to the conclusion that the officer might have developed a frame of mind which was incompatible with the exercise of a degree of neutrality required to dispassionately weigh relevant factors as a member of a panel determining whether or not the dog should be destroyed. It was in that sense that the plurality described the council officer as having (at [42]-[43], [46]) a “personal interest” even though it was not the kind of interest by which a person will receive some material or other benefit.

The issues before the Tribunal

The parameters of the matter before the Tribunal were determined by the subject matter of the complaint which was before the Commissioner. The complaint raised the issue of whether there was either direct or indirect discrimination on the grounds of either race or age for the purposes of s 8 of the Discrimination Act in relation to the recruitment processes for interns and resident medical officers. The references to “direct” or “indirect” discrimination are a shorthand method of describing the types of discrimination referred to in s 8(1)(a) and (b) of the Discrimination Act respectively. What would otherwise be indirect discrimination for the purposes of s 8(1)(b) is not discrimination if the condition or requirement imposed, which has the effect of disadvantaging a person because the person has the relevant attribute, is “reasonable in the circumstances”: s 8(2). Section 10 of the Discrimination Act makes it unlawful for an employer to discriminate against a person in the arrangements made for the purpose of deciding who should be offered employment, in deciding who should be offered employment or in the terms or conditions on which employment is offered.

There was little dispute apparent as to the facts surrounding the failure to offer Dr Wang employment as an intern. However the facts surrounding the reasonableness of any condition or requirement imposed by the Territory which might otherwise constitute indirect discrimination may involve findings of fact which were not obviously uncontroversial.

If unlawful discrimination was established under s 10 of the Discrimination Act then a question would arise as to what remedy should be granted under s 53E(2) of the HRC Act. That provision requires one or more of the following orders to be made: an order that the person complained about not repeat or continue the unlawful act; an order that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act; or an order that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.

Having regard to the scope of the issues before the Tribunal, there was no reason why, with appropriate case management, all the issues as to whether or not the conduct of the Territory was unlawful could not have been determined at a single hearing. Notwithstanding that the separation of the proceedings into different parts was done with the acquiescence or agreement of the parties, it is clear, with the benefit of hindsight, that the case would have been more effectively dealt with if fragmentation of the proceedings was minimised.

The submissions

The plaintiff ultimately submitted that there were a number of matters which collectively indicated that the test articulated in Ebner was satisfied. Those arose from the remarks made by the Senior Member at a number of the hearings as well as the manner in which he dealt with the application for disqualification itself. It is therefore necessary to set out in more detail what occurred on the relevant occasions.

Hearing on 25 November 2014

At this hearing Dr Wang was not represented although he was assisted by his stepson, Michael Liu. The Territory was represented by counsel. The Tribunal marked as exhibits the referral from the Commissioner, Dr Wang’s and the Territory’s submissions, a statement of Professor Frank Bowden and an article from the Medical Journal of Australia tendered by Dr Wang.

At page 8 of the transcript the Senior Member indicated that having read the papers he did not see that there was a case of direct discrimination although he indicated that he would stand corrected if the parties pointed to it. He said that there did appear to be a live issue as to indirect discrimination. Counsel for the Territory indicated her understanding that there was no issue as to direct discrimination but that there was an issue relating to indirect discrimination. She made it clear that the Territory’s position was that if there was a condition or requirement that would otherwise amount to indirect discrimination then it did not because the condition or requirement was reasonable for the purposes of s 8(2) of the Discrimination Act.

There are a number of pages of transcript in which the Senior Member outlined what appear to be his thought processes or provisional views. At one point Dr Wang, obviously unsure about what was going on, asked: “Do we get a chance to say our opinions on this or just let you finish first? We’re not too sure about the procedure here.”

There are then a series of passages in the transcript, to which the plaintiff draws attention. At page 10 of the transcript the following appears:

[SENIOR MEMBER]:   Well, what I'm trying to say is the concept of reasonableness, which there's a fairly good chance this will come down to - - -
DR WANG:   Yes, we believe that as well.
[SENIOR MEMBER]:   Well, that's what it looks like to me at the moment. It's to be judged by community standards and in a big picture, public policy standards, if you like. That evaluation process is not really something that lawyers have any monopoly on, if even any real experience in at all, but what concerns me is that evaluation of the reasonableness of that public policy does involve lots of other stakeholders in the community. There are other people whose interests are affected by this policy and not just yours. There are other people.
This sort of tsunami of doctors' problems that we hear about at conferences and the like is not an isolated incident that pertains just to you. It's a problem of a systemic nature in the community so I'm thinking that in the evaluation of the reasonableness of this policy whether this can fairly be done in the rarefied circumstances of just one individual or whether we need to hear from other stakeholders whose interests are affected by the reasonableness or unreasonableness of this policy. How am I to evaluate, in public policy terms, the reasonableness of it from my relatively uninformed position when I know, myself, and so does many other people in the community - it's no secret - that there is a systemic public debate about this?
Why wouldn't it be reasonable for me to say I think I would benefit from hearing from the AMA's point of view, for example, or from the point of view of perhaps the author of this document or from the point of view of other people whose rights are affected by this policy one way or the other and may very well have enlightening arguments to put about the reasonableness of this policy? That's what is going through my head. Do you want to comment on that, Dr Wang?

At page 11 of the transcript the Senior Member said to Dr Wang:

[SENIOR MEMBER]: I don't think we need to go into the nitty‑gritty detail of that right at the moment. I'm asking a bigger question. I'm asking - and I appreciate that I was fairly long-winded and the point mightn't have been taken so I'll put it in a simplified form - do you think that there are other players in the medical profession in Australia that might want to come and sit with you on your side of the table and put a point of view about the reasonableness of this policy?

Counsel for the Territory then made a submission in relation to the issues to be decided. In a passage that follows, the Senior Member contemplated a two-stage process, the second stage involving the question of reasonableness, and said (at page 12 of the transcript):

... If I am against you on that, and I think that there is a prima facie indirect [discrimination], then the road would fork again and you could either appeal that point or we would resume and hear evidence on the reasonableness of the policy which I would think would necessarily involve major stakeholders who are involved in the policy and affected by the policy because I don't believe that I am at all in a credible position to engage in that evaluation unassisted by the views of those people who are.

The Senior Member then raised a factual question about the process for registration of international medical graduates. Counsel for the Territory enquired whether Professor Bowden, whose statement had been admitted into evidence, should give evidence on the topic and the Senior Member said that he was happy to accept an explanation from the bar table. There was then a discussion in which Professor Bowden became involved. I note that the procedure adopted by the Tribunal made the status of the statements as to matters of fact made by Professor Bowden during the discussion unclear. At the conclusion of the professor’s explanation Dr Wang was invited to respond to what Professor Bowden had said before the Tribunal adjourned. Mr Liu and Dr Wang then made some statements. Notwithstanding having anticipated an adjournment, the discussion was then taken in a different direction by the Senior Member. He said (at page 17 of the transcript):

[SENIOR MEMBER]: I was at a meeting not so long ago in Sydney at Westmead, my daughter is a dermatologist there, and I heard some discussion about this particular policy and it wasn't complimentary. The people there, the young graduates and interns and stuff [sic] there were pretty annoyed at the ACT. They felt that New South Wales didn't discriminate against ACT graduates in the way that the ACT discriminates against New South Wales graduates, and indicated it was fairly parochial, I think was the term used (indistinct) that caused an enormous concern amongst the young doctors.

Professor Bowden provided a response to that and the discussion with the Senior Member continued for just over a page of transcript until the proceedings were adjourned for 15 minutes.

The plaintiff submitted that the conversation had strayed significantly from the scope of the five exhibits that had been tendered and had turned into a broad ranging discussion that departed from the questions that the Tribunal was required to address. Senior counsel for the Territory also pointed to the use of the word “discriminate” in the passage quoted above as indicating that the Senior Member had at that stage a view about the ACT discriminating against some persons.

After the adjournment, counsel for the Territory submitted that her preferred course of action would be to deal with the legal question of whether there was indirect discrimination and then, “if [the Senior Member requires] further evidence”, to deal separately with the issue of reasonableness. In relation to the scope of any hearing on the question of reasonableness the Senior Member then continued (at page 19 of the transcript):

[SENIOR MEMBER]: Yes. Well, it also raises the issue as to whether an invitation should be extended to other people, other groups that have relevant interests in this policy and views on it. And you both need to think about that, because although I can't tell them to adopt that cause of action, and I probably would be unlikely to unilaterally contact the relevant stakeholders and ask for their views, I still think that in terms of proper decision making here, and fair decision making, that the views of relevant stakeholders are material and that they should be invited to express that view.

The Senior Member continued on the stakeholder theme at pages 20 and 21 of the transcript:

[SENIOR MEMBER]: But I'm offering the opportunity for - not for you not to have to guess or be troubled by what those stakeholders might or might not say, but rather for them to be invited to actually come along and put their views. And you might find that they are supportive of your argument. But I do not know that they are, until I hear from them. They may not be, I suppose, too but I don't know that either until I hear from them.
At this point, we have only got the one stakeholder, ACT Government, expressing its view. So that's what I was talking about, about whether we have to do a two stage, or may have to do a two stage process and the second stage may well involve asking for the views of other stakeholders, including for example, these people might have something they want to say. They have gone to the trouble to write an article about it in a peer review learned journal. They appear to be well enough credentialed people in their own right. They may have some light to shed. I haven't read the article because it was just given to me, but it could be various people.

At page 21 of the transcript the Senior Member indicated that he would give an interim decision on the threshold question of whether the policy adopted by the Territory imposed a disproportionate burden, unfairness or disadvantage on people of a different race and then, depending on that decision, would move to stage two which would relate to reasonableness.

He then heard oral submissions on the question of indirect discrimination, making it clear at page 36 of the transcript that the proceedings were directed to two discrete questions, the first simply whether the categorisation process had the effect of generally treating people of different nationalities unfavourably, the second whether it was reasonable. Close to the conclusion of the hearing the Senior Member said (at pages 38 and 39 of the transcript):

Anyway, I'll go and read all the stuff, I'll read all the cases and submissions and I'll give an interim decision in writing on stage 1. Then you can both consider that, look at your respective appeal rights. If there's to be no appeal from that, then stage 2, we need to talk about if assuming I found that stage 2 is enlivened, then we need to talk about just who are the relevant stakeholders, just like the Chief Justice passage you just read, we said all those people were people with a relevant view, with a relevant interested view, that's exactly what I'm saying, that a major public policy of this dimension, this kind, can't be resolved other than by considering its public impact. We'll talk about that if and when it arises.

The decision of the Tribunal dated 16 January 2015

The written decision was then published on behalf of the Senior Member by the General President of the Tribunal: Wang v Australian Capital Territory(Discrimination) [2015] ACAT 5. In that decision the Senior Member recorded (at [31]):

At the hearing it was agreed between the parties and the Tribunal, that the Tribunal would give an interim decision as to whether the case involved direct or indirect discrimination under the Act, but that the Tribunal would not consider the reasonableness of any discrimination until further submissions were made by the parties.

That does not accurately reflect the proceedings before the Senior Member. It is apparent that the parties were proceeding on the basis that a decision would be made on whether or not there was an issue of indirect discrimination and that no issue arose in relation to direct discrimination. The Senior Member ultimately found, for reasons which he articulated, that both direct discrimination and a prima facie case of indirect discrimination were made out. However, the plaintiff does not complain about any denial of procedural fairness insofar as the Senior Member addressed the question of direct discrimination.

In relation to direct discrimination, the Senior Member relied upon s 7(2) of the Discrimination Act which provides that a reference to an attribute such as race includes a characteristic that people with that attribute “generally have”. He found that a characteristic that international medical graduates “generally have” is that they are generally of a nationality other than Australian. The Senior Member reasoned that the fact that the policy did not single out any particular nationality did not mean that the policy was not discriminatory and that therefore there was direct discrimination as described in s 8(1)(a) of the Discrimination Act.

At paragraph 116 and following of the decision, the Senior Member then found that there was also indirect discrimination. He rejected the submission that Dr Wang’s nationality was not a causative factor in relation to any disadvantage suffered by reason of the condition giving priority to graduates of the Australian National University or other Australian medical schools. Once again, the Senior Member relied on the terms of s 7(2) and articulated the issue as follows (at [124]):

The test in section 8(1)(b) is whether automatically allocating all IMG’s including the Applicant to Category 8 is ‘likely’ to have the effect of disadvantaging them. Again, the answer is transparently ‘yes’.

Finally the Senior Member addressed Dr Wang’s claim in relation to his application for a resident medical officer position. The Senior Member found that Dr Wang did not satisfy the eligibility requirements for the position because the positions were designed for persons in their second or third postgraduate year and that, because he did not satisfy the registration condition, the rejection of his application was due to him not meeting fundamental selection criteria and that did not constitute discrimination on the basis of his race or any other protected attribute under the Discrimination Act or the Human Rights Act 2004 (ACT). He found that the ineligibility for the resident medical officer position was an immediate consequence of the Territory’s refusal to admit him to an internship. He therefore rejected the claim of direct or indirect discrimination in relation to the resident medical officer position.

Directions hearing on 15 June 2015

The Territory relies on two parts of the transcript of the directions hearing on 15 June 2015, one at the commencement of the directions hearing and one at the end of the directions hearing. The part of the transcript at the commencement of the directions hearing starts with a reference to the decision of the Appeal President and the question of how to then deal with the issue of reasonableness. The following appears in the transcript (at page 3):

[SENIOR MEMBER]: … But the Appeal President had a different view on that so we need to resolve the indirect discrimination, which raises the reasonableness issue and that's where we were. And I think I'd been saying, well, how are we going to do this? I mean, this is sort of a matter of public policy. It's not sort of like something you discuss down the pub and it struck me as it couldn't and shouldn't just turn upon my personal views, you know social views of what's reasonable and what's unreasonable. I, like I think all other human beings, have my biases and although I note that most judges will vehemently tell me that they are unbiased and that they occupy the neutral ground and everyone else that dissents from them is biased.
So I was saying well, the reasonableness issue struck me as being a matter there might be a lot of stakeholders that might have a view on it and we discussed who they might be and I invited the parties to indicate who the relevant stakeholders might be and from whom the evidence might be taken. I don’t think we got very far along that track but I might clarify that first up, what the parties – in fact I think the applicant more or less said it was one academic or something that published a paper and that was it?
MR HASSALL: Yes, in our submission the way in which the Act is drafted the question of reasonableness does involve the public policy considerations that you have referred to, Senior Member, and that is public policy as opposed to pub policy. But the way the - - -
[SENIOR MEMBER]: Let me tell you (indistinct) perhaps flippantly, but after the media published the review of the decision on the previous occasion, I didn’t count them I just stopped looking in the end. We got a spate of emails from people around the country telling me that why didn’t I go and live in China, you know all this sort of racist crap, I put it – I have to – racist crap telling me that Australia for Australians and all this sort of stuff which was I thought sort of – I was sitting there thinking well this only reinforces why I think I called it the correct way in the first place, but anyway, that is the pub view.

Counsel for Dr Wang then indicated that on the point of reasonableness he would lead some evidence of the opinion of a Dr Kevat and that he would wish to cross-examine Professor Bowden. The Senior Member then said (at pages 4 and 5 of the transcript):

[SENIOR MEMBER]: I am trying to get a bigger picture. I mean as I said before I thought like the AMA would be an obvious one, would there be other associations of medical practitioners and specialists and medical students and stuff that might have also had an interest in a big public policy issue of what’s reasonable and what’s not. Other states might have had an issue, I would have thought New South Wales might have had an issue, the regulators in New South Wales. That was sort of what I was getting at.

Counsel for Dr Wang repeated his intention to only lead evidence from Dr Kevat. Counsel for the Territory indicated that the evidence relied upon would be that of Professor Bowden and another witness responsible for recruitment at ACT Health. The transcript then records (at page 5):

[SENIOR MEMBER]: My suggestions don’t go beyond that but I guess I make the obvious comment that insofar as it may or may not become relevant on appeal, if it gets to that point you do understand that in terms of me taking into account relevant considerations or irrelevant considerations even. If you essentially leave the broad picture stuff to my own subjective judgement guided by Prof Bowden and Dr Kevat’s evidence only, it will be pretty hard for you to complain on appeal that I failed to take into account that which is not put, that is not here, particularly when I’m urging that I would have liked – and urge, like, not ordering – the views of bigger, broader parties involved in the matter.
MR HASSALL: We will take that on notice, Senior Member.

The directions hearing then continued and the Senior Member made the orders referred to above to have the matter listed for hearing. There was then some further discussion including some discussion as to how the cross-examination of Professor Bowden could be achieved given that he may be overseas. Counsel for Dr Wang indicated that the cross-examination would go beyond merely fulfilling the requirements of the rule in Browne v Dunn. The directions hearing then appeared to conclude but the Senior Member then embarked on another discussion with Professor Bowden, asking him whether he had seen “that expose on Four Corners, was it, about the bullying ...”. Professor Bowden indicated that he had. The transcript records (at page 12):

[SENIOR MEMBER]: And much fallout from that?
PROF BOWDEN: Everybody around the country is very, very disturbed and luckily it’s bringing a number of issues right to the forefront. It’s good to get it out there.
[SENIOR MEMBER]: Yes. I don't know whether - well, I wouldn't have told you 'cause I don't know you, but that I had some - and my daughter has just been admitted into the Royal College of Dermatology and - she graduated years ago and she's just been awarded a doctorate at Sydney for skin cancer stuff. But she couldn't get into the Royal College and she applied each year and the problem was that the head of the school, the head of the Royal College, he was a professor at one of the Eastern Sydney universities and his students first year out, second year out, third year out got the one or two appointments they have every year, year on year, until it erupted in an internal issue when the head of the Dermatology at Westmead, which is the biggest - he's an overseas trained doctor actually by coincidence - wrote to the Royal College a letter I've seen, accusing them of gender bias and racial bias and we were proposing to commence in the Federal Court to rectify that, but then they decided to change their policy.
But I gather it's a fairly widespread issue. I've seen lots of stuff come out since about the bullying and this sort of selectivity in how they're appointing people and so on. Anyway, it was coincidental. It was on at the same time as this. Thank you.

The hearing then concluded.

Senior counsel for the Territory made a number of submissions in relation to these portions of the transcript.

(a)She submitted that the Senior Member’s reference to “the pub view” amounts to the member almost acknowledging that he has personal views that may come into play and a recognition that he had to not determine the matter by reference to his personal views or what he described as “[a discussion] down the pub”.
(b)Next she submitted that his disclosure of having received emails including “all this sort of racist crap” is significant in that it is not clear what emails the Senior Member received and it appears from what he said immediately following that he had adopted “the pub view” in deciding that he “called it the correct way in the first place”.
(c)She submitted that, notwithstanding that the parties took a fairly confined view as to the witnesses that would be called on the issue of reasonableness, the Senior Member expressed the view that there should be some broader ranging enquiry involving a whole range of third parties to come and express opinions on what was reasonable and what was not.
(d)She submitted that the exchange with Professor Bowden was significant in that it involved an unnecessary discussion with a person who was to be a witness required for cross-examination and in relation to whose evidence there may be a contested factual issue.
(e)She submitted that what was said indicates a direct personal interest in relation to the subject matter of the case before the Tribunal arising out of the experiences of the Senior Member’s daughter with the Royal College of Dermatology. That is articulated as involving an issue similar to that in the application before the Tribunal, namely, access to opportunities to practise as doctors in a chosen field and the practices concerning the limited number of places that may be available to what might be a large number of candidates.

The reasons given on 8 July 2015

After the Territory wrote the letter dated 24 June 2015 inviting the Senior Member to disqualify himself he gave reasons on 8 July 2015 for not doing so. It appears that the written reasons were provided to the parties on that day. The written reasons were also read out so that they substantially appear in the transcript. There are some minor differences between the written reasons and the transcript but they are not significant for present purposes. I will refer here to the content of the written reasons.

The reasons first set out the background. In paragraph 6 the Senior Member stated that:

6.At the hearing of the matter it was agreed between the parties that I would consider whether on the agreed facts, a case of direct or indirect discrimination had been made out [31]; and if the case was only one of ‘indirect discrimination’ then there would need to be a further hearing on the ‘reasonableness’ defence that applies only to indirect discrimination.

Senior counsel for the Territory submitted that there were in fact no facts agreed between the parties for the purposes of the earlier hearing and that prior to giving the earlier decision there had been no indication that direct discrimination would be dealt with.

The reasons then dealt with what occurred at the conclusion of the directions hearing as follows (at [11]-[20]):

11.At the end of that direction hearing I embarked on a [casual] conversation with Prof Bowden from the ANU in the presence of all parties whilst they were packing up. The week before there had been a Four Corners Program on bullying of Registrars by Specialists. There had been media attention to the same issue in Canberra which Prof Bowden was involved in. The Professor indicated the serious nature of the problem. This was a matter of public knowledge for interested persons.
12.I informed the Professor of my daughters experience with poor behaviour by specialists in the manner in which they handled the selection of registrars into the particular Royal College that she was involved with.
13.The Tribunal is not a court and is conducted with a substantial degree informality. The parties and the decision maker are seated in relative close proximity to each other. The proceedings to that point had this same character with different people making contributions at different times.
14.None of this has anything to do with the exercise of statutory construction that I was called upon to undertaken. None of it has anything to do with the selection of interns in Canberra or anywhere else.
15.In that conversation I indicated that part of the criticism of the particular Royal College selection process concerned patronage and discrimination against candidates on gender grounds and tutelage by overseas trained specialists.
16.This was a recitation of a factual scenario that I had dealt with. It had nothing to do with the facts of this case or the simple exercise of statutory interpretation I was called upon to determine. [It] was a fact of my experience.
17.In the same conversation I informed Prof Bowden of the fact that this present case had received media attention, which he was no doubt aware of; and that I had personally received crank emails of a racist kind. This is just a fact and has nothing to do with the exercise of statutory interpretation I was required to perform and post dated the interim decision.
18.I am accused of making an interim order without power notwithstanding that the parties expressly agreed with this process. I reject the proposition that I lack power to make an interim order determining liability separate to penalty, even more so when the parties agree on that process.
19.The Respondent alleges that I hold a view that there is a ‘widespread’ gender and race issues in appointment within the medical profession. I have a view from experience that there are issues of gender and race discrimination within the community generally and hence the crank emails. I expressed no view that race and gender issues are ‘widespread’ in the medical profession and hold no such view, although the media attention to the bullying of female Registrar did raise gender issue. Of itself this issue has nothing to do with the issue of statutory interpretation I was called upon to determine.
20The present case raised explicitly whether the Intern Policy breached the Discrimination Act 1991 on racial grounds. It is somewhat difficult to determine this issue without turning my mind to the issue of how race issues entered the process.

Senior counsel for the plaintiff made a number of submissions about these parts of the reasons.

(a)In paragraph 11 the sentence “There had been media attention to the same issue in Canberra which Prof Bowden was involved in” was not referred to in the transcript of 15 June 2015 and was new information.
(b)The statement in paragraph 13 of the process being one of substantial informality is inconsistent with what occurred. She submitted that the process was not a broad ranging conference where anybody who happened to be in the room was invited to participate. Rather, until that part of the transcript, the process had only involved contributions from the Senior Member, counsel for Dr Wang and the Territory and a representative from the Commission. There were some brief comments by Professor Bowden in answer to a question from the Senior Member in relation to his availability for cross-examination. Senior counsel submitted that this reflects a misunderstanding of the importance of the Senior Member’s role in remaining impartial and independent in the determination of the issues that come before him.
(c)At paragraph 14 of the reasons the Senior Member placed emphasis on the limited nature of the exercise of statutory construction which he was called upon to perform. He had previously referred to this in paragraph 4 of the reasons and referred to it again in paragraphs 17, 19, 28 and 29. Senior counsel submitted that these references indicate that the Senior Member misunderstood the scope of the proceedings before him or alternatively the test to be applied in relation to the apprehension of bias. That is because inevitably, having regard to his conclusions in relation to direct discrimination and indirect discrimination, the Senior Member was then required to continue with the hearing and address the issues of reasonableness and relief. On any view those issues went beyond confined exercises in statutory interpretation. Thus the emphasis during the course of his reasons reflected a misunderstanding of the issues which he was called to decide.

(d)She pointed out that in paragraph 15 the Senior Member disclosed new material not reflective of the conversation with Professor Bowden, namely, criticism of the particular Royal College on the grounds of “tutelage by overseas trained specialists”. She submitted that even though precisely what the Senior Member meant is unclear, it appears to bring the subject matter of the Senior Member’s earlier involvement via his daughter close to the subject matter of the present proceedings.
(e)In relation to paragraph 17 she submitted that the statement that the Senior Member “informed Prof Bowden of the fact that this present case had received media attention” was incorrect because no such statement appears as part of the conversation recorded in the transcript.
(f)In relation to paragraph 19 senior counsel submitted that what appears there is not consistent with the transcript of what the Senior Member said in the directions hearing of 15 June 2015 about discrimination being “widespread” (see the extract set out in [57] above).

The balance of his reasons was as follows:

21. In determining not to [recuse] myself I take into account the following principles.
22.Bias does not exist because a decision maker has experience or holds a view on issues relevant to the case at hand even to the point of holding a predisposition [610]. All people have predispositions on social and political issues and a decision maker is not expected to be devoid of such views [643]. I am entitled to hold a view that gender and race issues exist in the community.
23.I am allowed to bring my experience to bear in the decision making process and I am not required to be a tabula [rasa]. I am required to have an open mind to the issues, not an empty mind [611][617]. I am entitled to watch media reports on TV and note their contents and even discuss them with the Professor.
24.An open mind requires only that I am open to persuasion on the evidence [642]. In this case there was no contentious evidence. The facts were all agreed except for the one matter that was so obvious as not to require argument. The issue of law to be determine seem equally obvious to me.
25.The determination of bias must be made on a consideration of the whole of the circumstances of the case [625]. The fair minded observer takes a balanced approach to any relevant information and considers it within its overall social, political or geographic context. [626]. The fair minded observer will be assumed to possess a detailed knowledge of the facts of the case and the applicable law [627].
26.This includes the casual nature of the conversation with the Professor in an open context about matters that were of contemporaneous concern within the medical profession and to the community and media.
27.The determination of a reasonable apprehension of bias involves a two-step process:
(a)An identification of what is said might lead me to decide a case other than on its factual and legal merits;
(b)An articulation of the logical connect between those things and the feared deviation from the course of deciding the matter on its merits.[614][Isbester v Knox City Council [2015] HCA 20 at 20-28].

28.I don’t accept that anything I said can satisfy 25(a). Even more to the point I cannot see how anything that occurred in the discussion with the Professor can have any logical connection with the simple point of statutory interpretation that I was called upon to determine on a set of agreed facts.
29.Prejudgment is an attitude towards those things a decision maker is required to judge, namely the evidence and the facts. A decision maker does not judge issues of law. The law is what it is. It is difficult to see how a decision on an issue of statutory construction against the background of agreed facts can raise an issue of bias by prejudgment. [652].
30.The Respondent has its right of appeal on the issue of statutory interpretation. It can also appeal the alleged lack of power to make an interim decision. These are issues that can and should be addressed on appeal and not by asking me to [recuse] myself after a decision is delivered. If the Respondent seriously doubted my power to give an interim decision and to consider the direct discrimination issue, which of itself has nothing to do with my alleged anti medical profession view, then it is curious that they did not raise that purported jurisdictional objection at any time in the six months following the interim decision being given.
31.For each of the above reasons I decline to [recuse] myself and direct that the parties comply with the directions previous given for the disposition of the remainder of the case.

The numbers in square brackets appear in the reasons. The parties could not explain what they referred to.

Senior counsel for the Territory submitted that these parts of the reasons contained a number of errors.

(a)She submitted that the test articulated in paragraph 25 was not correct because the authorities establish that the fair-minded observer will have an understanding of the process but not necessarily a detailed knowledge of the facts and the applicable law.
(b)She submitted that paragraph 26 sought to trivialise the nature of the conversation with the professor in circumstances where he was an important witness about whom findings may ultimately need to be made as to whether his evidence would be accepted or not.
(c)She explained that the reference in paragraph 28 to “25(a)” was probably a mistaken reference to the first limb of the test as articulated in paragraph 27(a) of the reasons.
(d)She submitted that the statement in paragraphs 28 and 29, that the issues raised could not give rise to an issue of prejudgment because the issue that he had determined was a question of law, misunderstood the nature of the test for an apprehension of bias.

Summary of the Territory’s contentions

Having regard to the matters set out above, the Territory’s argument is that this is not a case of a tribunal member making one unfortunate comment that might be taken out of context if a person was particularly sensitive or a case alleging an apprehension of bias because a tribunal member has identified the wrong legal test or decided a matter that did not arise for decision. Rather senior counsel submitted that it is a combination of matters that cumulatively would satisfy the Ebner test. At different points in the oral submissions the formulation of that combination of factors varied. However they may be summarised as follows:

(a)disclosure by the Senior Member that he holds personal views in relation to the existence and extent of discrimination or other problems in the medical profession and the community at large;
(b)disclosure by the Senior Member of his personal involvement with issues of discrimination arising out of his daughter’s experience with the Royal College of Dermatology including potential involvement as a lawyer or a party in proceedings in the Federal Court;
(c)statements during the course of the proceedings consistent with a view that the proceedings gave rise to significant issues of public policy and the desirability of involving a range of “stakeholders” in resolving that question of public policy;
(d)errors in addressing the question of whether or not to disqualify himself from the further hearing of the case.

Ultimately the plaintiff articulated the case as being one analogous to that in Isbester, namely, that the Senior Member had been demonstrated to have an “interest” in the outcome of the proceedings sufficient to disqualify him notwithstanding that the interest did not involve any material benefit.

The alternative way of characterising the case is one not of “interest” but instead of “conduct”. Upon that characterisation the conduct of the Senior Member has indicated that his views on racial discrimination were such that the fair-minded lay observer might apprehend that the Senior Member might be no longer open to persuasion. The case is therefore analogous to a case such as Epeabaka except that rather than relying upon a single discrete statement, the Territory relied upon a range of aspects of the Senior Member’s conduct which cumulatively were said to give rise to an apprehension of bias.

Has an apprehension of bias been made out?

In summary, I do not accept that the circumstances give rise to an apprehension of bias either by reason of a personal interest analogous to that identified in Isbester or because the conduct of the Senior Member might be considered indicative of prejudgment.

The case is not analogous to Isbester. As is apparent from both the plurality judgment and the judgment of Gageler J, the decision in Isbester was a development of the line of authority to the effect that where principles of natural justice are required to be observed a person cannot be accuser and judge. That was extended to a circumstance where the role of accuser had formally concluded and a different process consequent upon the successful prosecution was being undertaken. There is no analogous circumstance in the present case in that the Senior Member had not played any role akin to being an accuser in the present case. Further, even if one seeks to extract a broader principle from Isbester, namely, that disqualifying bias may appear in circumstances where a person, in a previous role, might have “developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations” (Isbester at [63] per Gageler J), the evidence in the present case did not indicate that the Senior Member had been in such a role that he developed such a frame of mind. The most that could be said was that he had taken an active interest in public debate over discrimination in the medical profession and the community more generally and at some point in the relatively recent past he had, along with his daughter, contemplated invoking anti-discrimination legislation in relation to policies or decisions relating to membership of a body of medical specialists. Those circumstances are not such that either as a matter of psychology or authority it could be said that the Senior Member had a personal interest which was incompatible with impartial determination of the claim in this case.

In relation to the conduct of the Senior Member, in my view that conduct was not such as might lead a fair-minded lay observer to apprehend that the Senior Member might not bring an unprejudiced mind to the resolution of the issues that he had to decide. Two points must be noted. First, having regard to the terms of the ACAT Act, the Senior Member had a discretion as to the manner in which he conducted proceedings. It was therefore open to him to conduct proceedings in a manner different to and less formal than proceedings of a similar nature might be expected to be conducted before a court. As a consequence, in assessing whether or not the conduct of the Senior Member gave rise to an apprehension of bias, it is necessary in this case to avoid confusion between on the one hand, the conduct and the disclosures in the course of the proceedings which a judge might consider to be unwise or which might involve a degree of informality inconsistent with the gravity of the issues before the Tribunal and, on the other hand, conduct and disclosures which are indicative of prejudgment. Similarly, insofar as possible errors of law are relied upon, they are only relevant to the extent to which they, in combination with other evidence in the case, throw light upon the issue of an apprehension of bias since errors of law are not per se indicative of bias.

Second, as Jia and other authorities referred to above (at [25]-[29]) make clear, the fact that the Senior Member as a result of his conduct might be seen to have a predisposition one way or the other or may, as a result of personal or professional experience, have considered the issues likely to arise in the present case is insufficient to establish an apprehension of bias.

The aggregation of factors relied upon by the Territory is summarised at [68] above. In my view, although a lay observer might as a result of that conduct in aggregate consider that the Senior Member might have a predisposition to find the existence of unlawful discrimination, the conduct would not be sufficient to indicate that he was not open to persuasion and would not be able to fairly consider the factual and legal issues involved in the determination of the proceedings. I will make additional comments in relation to each of the categories that I have identified above.

Personal views: I adopt as sound guidance the remark of Davies J in O’Hara (at [50]):

Persons who sit on tribunals … that affect the rights of parties and which are subject to the oversight of this Court … should probably never publicly disclose personal opinions that they might hold about matters that relate to the office they hold or the function they perform. To do so in either case is only liable to result in applications for a review of decisions made by them and is likely to undermine the respect and authority of the tribunal on which they sit …

On 25 November 2014 the Senior Member referred to “[t]his sort of tsunami of doctors’ problems that we hear about at conferences and the like” and then referred to it being “a problem of a systemic nature in the community” (see [39] above).

On 15 June 2015 he referred to his personal views and the unfortunate correspondence he received after the publication of his reasons and expressed the “pub view” and his opinion that he “called it the correct way in the first place” (see [54] above).

In his reasons for declining to disqualify himself given on 8 July 2015 he said: “I am entitled to watch media reports on TV and note their contents and even discuss them with the Professor” (see [65] above).

While the expressions of opinion and commentary on his own decision-making process during the course of the hearings clearly fall into the category of things that, as a matter of good judgment, should probably never be publicly disclosed, they are matters which would not cause a fair-minded lay observer to consider that the Senior Member had prejudged the particular issues in this case. The fact that decision-makers hold views about the subject matter of their decisions is hardly surprising. A judge fed a steady diet of personal injury cases arising out of workplace injuries might hold equivalent views to those expressed by the Senior Member about workplace safety or workplace safety in a particular industrial context, namely, that workplace injuries were a significant issue for the community, that the issues were widespread and that there were problems of a systemic nature. While a judge would generally be prudent enough not to publicly disclose any such views whether they were derived from the media, conferences or personal experience, even if they were disclosed or known, a fair-minded lay observer would not reasonably apprehend that such views would preclude the judge from fairly deciding a case involving a workplace injury. As a consequence, although the comments were unnecessary and it is unfortunate that they were made, they are not matters which I consider either by themselves or in combination with other factors might give rise to an apprehension of prejudgment.

Personal circumstances: There is no doubt that it was unnecessary for the purposes of the proceedings for the Senior Member to volunteer on 25 November 2014 and 15 June 2015 the information about the circumstances of his daughter or his own involvement in a potential claim relating to the conduct of (what he described as) the “Royal College of Dermatology”. That was to the effect that as a result of the practices adopted by the Royal College of Dermatology for selection of persons for membership of that organisation, the Senior Member and his daughter had contemplated the commencement of proceedings in the Federal Court so as to remedy what he considered to be unlawful discrimination on the grounds of gender and race.

In both instances of disclosure the Senior Member appears to have volunteered this information in order to commence a discussion with Professor Bowden. It was clear that Professor Bowden was a witness for the Territory and by the point at which the discussion occurred on 15 June 2015 it was apparent that Professor Bowden was to be cross-examined by counsel for Dr Wang. It is remarkable, in those circumstances, that the Senior Member thought it appropriate to engage in any discussion at all with the professor, let alone a discussion about the involvement of the Senior Member and his daughter in circumstances somewhat analogous to those arising in the present case, namely, whether there was unlawful discrimination involved in a process whereby doctors were admitted to the Royal College of Dermatology. The unusual and, in my view, imprudent decision to initiate conversations during the hearings with the principal witness for a party does not, however, indicate prejudgment.

While I accept that in some circumstances the personal experiences of a decision-maker may be of such a quality or bear such a relationship to the subject matter of the proceedings that a fair-minded lay observer might apprehend that he or she might be unable to bring an impartial mind to the resolution of the case before the decision-maker, the circumstances disclosed were not so closely related to the present proceedings or involve the Senior Member in such a way that a fair-minded lay observer might come to that view. That is because:

(a)the involvement of the Senior Member described appears only to have been as an advisor to his daughter;
(b)proceedings did not in fact eventuate; and
(c)the circumstances, while relating to employment or progression within the medical profession, were not immediately factually analogous to the issues that arose in the present case.

Broad ranging enquiry: It is clear that, at least up until the conclusion of the hearing on 15 June 2015, the Senior Member was promoting the idea that the parties might procure the involvement of additional “stakeholders” who may express their views on the broader question of public policy which, at that stage, the Senior Member perceived might be involved in determining the question of reasonableness. What happened subsequently is that the parties manifestly declined to take up the Senior Member’s suggestion as to the involvement of other “stakeholders”. While directions were made on 19 March 2015 requiring the parties to identify an agreed list of “stakeholders” (see [15] above) the parties indicated an intention to only call very limited evidence on the question of reasonableness. Even at the hearing on 25 November 2014 the Senior Member had recognised that it was for the parties to make the forensic decisions as to the witnesses to be called and hence that the factual decision that the Tribunal was called upon to make would be based on the limited evidence called by the parties. At the hearing on 15 June 2015 the Senior Member indicated (at pages 4 and 5 of the transcript) his wish to “get a bigger picture” including potentially from the Australian Medical Association, medical practitioners, medical specialists, medical students and State regulators. However, in the light of the position adopted by the parties, the Senior Member, clearly reluctantly but quite properly, accepted that his role was to adjudicate upon the case presented by the parties. A fair-minded lay observer might form the view that the Senior Member placed too great an emphasis on the public policy consequences of a decision in the case and too little emphasis on quelling the controversy between the parties. However, that emphasis would not be indicative of prejudgment but instead possibly of a misconceived perception of the role of the Tribunal. The apparent desire to hear from a wider range of “stakeholders” was not such that it might indicate to a reasonable lay observer that the Senior Member might have a closed mind. In fact it is more consistent with the reverse, having regard to the unpredictability of the positions adopted by any of those contemplated “stakeholders”. If there was a vice it was seeing the decision of the Tribunal as an instrument of public policy rather than a judicial or quasi-judicial decision to quell a controversy between the parties. In any event, having regard to the whole of the transcript, by the time the application for disqualification was made, because of the confined nature of the case being put by the parties, it would be apparent to a fair-minded lay observer that the Senior Member appropriately recognised that he was obliged to determine the case presented by the parties.

Errors of law: As I have indicated above, the alleged errors of law are not per se relevant. Even if the Senior Member applied an incorrect test, that should not prevent this Court from applying a correct one, either on this application or ultimately on an appeal on a question of law from the Tribunal. Errors of law could therefore only be indirectly relevant on the present application to the extent that the circumstances might indicate that they were a product or indicator of prejudgment. The two principal errors of law alleged are a misconception of the requirements of s 8(2) of the Discrimination Act as to the nature of the enquiry that must be undertaken to determine reasonableness, and the approach taken to the disqualification application itself. In relation to the requirements of s 8(2), while it is clear that the Senior Member initially contemplated that the parties might wish to lead evidence from “stakeholders”, it is clear that at least by 15 June 2015 the Senior Member appropriately recognised that, notwithstanding his interest in hearing from a range of “stakeholders”, it was for the parties to determine what evidence was called on the issue of reasonableness and he accepted the forensic choices made by the parties. Therefore I do not consider that any misconception as to the scope of the issues arising in relation to s 8(2) is of significance in relation to an apprehension of bias.

In relation to the reasons given in response to the request that the Senior Member disqualify himself, those reasons clearly involve an error of law insofar as the Senior Member appeared to only look backward, examining whether or not his reasons given on 16 January 2015 were affected by an apprehension of bias. This is reflected in the emphasis in his reasons upon the confined exercise of statutory interpretation with which he was involved. Plainly enough in considering whether there might have been an apprehension of bias, regard needs to be had to the requirement for the Senior Member in the future to determine, if necessary, the question of reasonableness as well as to determine what remedy should be granted in relation to direct discrimination and, if he found it, indirect discrimination. It was thus necessary to examine the effect of his statements and conduct not only in relation to the exercise of statutory interpretation which he had completed but also in relation to the question of reasonableness and relief which had yet to be dealt with. Those two issues, which were yet to come in the proceedings, could not be characterised as narrow exercises of statutory interpretation as they involved potentially contested issues of fact and the exercise of discretion. However the fact that the Senior Member took an apparently erroneous approach to this issue sheds little light upon the issue of bias. It cannot be said on the basis of the transcript that the making of such an error was evidence of prejudgment. Rather, in response to the letter dated 24 June 2015, the Senior Member had prepared his reasons and indicated that he was going to “read them onto the record and then either party can tell me why I’m wrong on those” (at page 6 of the transcript of 8 July 2015). At the conclusion of his reasons the Senior Member invited “comments”, which in context must mean submissions, that the parties wished to make in relation to the content of those reasons. Neither counsel appearing for the Territory nor the solicitor then appearing for Dr Wang had any such submissions and certainly neither took up the opportunity which the Senior Member had given them to point out any errors in those reasons. Therefore I do not consider that the error in dealing with the invitation to disqualify himself is of significance in now determining whether or not an apprehension of bias is established.

For these reasons I do not consider that these matters individually or collectively indicate either that the Senior Member had such an association with a particular issue so as to put him in a position equivalent to the council officer in Isbester or that his conduct was such as to indicate to a fair-minded lay observer that he might not be open to persuasion in relation to the issues which he had to decide. Therefore the claim for an order in the nature of prohibition must be refused. The parties agreed that there should be no order as to costs.

Orders

The orders of the Court are:

1. The proceedings are dismissed.

2. There is no order as to costs.

I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.

Associate:

Date: 1 December 2015