Duncan v IPP

The proceeding concerned an appeal from a decision of the Independent Commission Against Corruption (ICAC) Commissioner. The appellant, Duncan, sought to challenge the Commissioner's conduct, alleging apprehended bias. The appeal was heard by Bathurst CJ, Barrett and Ward JJA.

The central legal issue before the Court of Appeal was whether the conduct of the ICAC Commissioner gave rise to a reasonable apprehension of bias. This involved considering whether the Commissioner's interactions with the Executive and Government Departments, the advice provided, and the circumstances surrounding that advice, either individually or collectively, demonstrated a pre-judgment of matters relevant to the ICAC's investigation. The Court was required to apply the established test for apprehended bias, as articulated in cases such as *Ebner v Official Trustee in Bankruptcy*, to the specific context of an investigatory body like the ICAC and the scope of its governing legislation, the *Independent Commission Against Corruption Act 1988*.

The Court of Appeal reasoned that the test for apprehended bias requires an examination of whether a fair-minded lay observer, having considered the facts, would apprehend that the decision-maker might not bring an impartial mind to the issue. Applying this test, the Court found no logical connection between the Commissioner's conduct and the alleged apprehended bias. The Court concluded that the interactions and advice provided by the Commissioner did not demonstrate a pre-judgment or a lack of impartiality.

Leave to appeal was granted, but the appeal was ultimately dismissed with costs.