DQKZ and National Disability Insurance Agency

This matter concerned an application by the Applicant for the Member to recuse himself from conducting the substantive review proceeding on the grounds of actual bias or, in the alternative, apprehended bias. The dispute arose in the context of a review of a decision by the National Disability Insurance Agency. The application for recusal was heard by Member P French in the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the Member had demonstrated actual bias or whether there was a reasonable apprehension of bias that would prevent him from impartially determining the review. The Applicant contended that his personal information, contained in documents handled by HWL Ebsworth Lawyers (who acted for the Agency), was allegedly compromised in a cyber ransomware attack. The Applicant claimed the Member had an affiliation with individuals connected to this situation, leading to the apprehension of bias.

The Member applied the established legal principles for determining apprehended bias, which require a fair-minded lay observer to reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the questions. The test is one of real, rather than remote, possibility, and involves identifying the source of potential bias and articulating the logical connection between that matter and a feared deviation from deciding on the merits. The Member found that the Applicant had not established any connection to or knowledge of the individuals he claimed the Member was affiliated with. The Member concluded that a fair-minded lay observer would accept his assurance that no such affiliation existed and would not reasonably apprehend that he might not bring an impartial mind to the issues.

Consequently, the Member determined that the Applicant's application for recusal on the grounds of actual or apprehended bias should be refused.