Hojbota and Secretary, Department of Social Services (Social services second review)

This matter concerned an application by the applicants for the recusal of a Member of the Administrative Appeals Tribunal (AAT) on the grounds of actual or apprehended bias. The applicants alleged that the Member's previous statements and conduct during a telephone directions hearing demonstrated bias, and they sought the Member's dismissal from the proceeding.

The central legal issue before the Tribunal was whether the Member should recuse themselves from determining the proceeding due to allegations of actual or apprehended bias. The Tribunal was required to consider the common law principles of natural justice, specifically the rule against bias, and how these principles applied in the context of an application for recusal, particularly in light of the now-repealed section 21A of the *Administrative Appeals Tribunal Act 1975* (Cth).

The Tribunal, referencing the decision in *Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs*, affirmed the common law position that ordinarily, a decision-maker against whom an allegation of bias is made must determine whether they should recuse themselves. The Tribunal noted that section 21A of the AAT Act, which provided a mechanism for reconstitution of the Tribunal in cases of public importance, was not a substitute for this common law position and had a limited operation. As section 21A has since been repealed and no parallel provision exists, the Tribunal concluded that the common law position prevails. Applying these principles, the Tribunal found no grounds for actual or apprehended bias against the Member.

Consequently, the application for the Member to be recused was refused.