JWVH and National Disability Insurance Agency

This matter concerned an application by JWVH for the Senior Member of the Administrative Appeals Tribunal to recuse herself from hearing the review of a decision by the National Disability Insurance Agency. JWVH contended that the Senior Member was biased in favour of the National Disability Insurance Agency and against her. The Senior Member treated JWVH's correspondence indicating her intention not to participate if the matter was heard by the current Senior Member as a formal recusal application.

The legal issues before the Tribunal were whether there was actual bias or apprehended bias on the part of the Senior Member, and consequently, whether the Senior Member ought to recuse herself from the proceedings. The Tribunal was required to consider the well-settled principles governing applications for recusal, including the tests for actual bias and apprehended bias, and the obligation of a decision-maker to hear cases unless disqualified.

The Senior Member applied the established legal principles for determining recusal applications. The test for actual bias requires a party to prove that the decision-maker is so committed to a particular outcome that they will not alter it regardless of the evidence or arguments presented, a high onus to discharge. The test for apprehended bias, which is the relevant test in this instance, requires consideration of whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue. This test requires a real, not remote, possibility of bias, and a bare assertion of interest is insufficient; the cause of the appearance of bias and its logical connection to partiality must be identified. The Senior Member noted that while a decision-maker must not recuse themselves too readily, in cases of doubt, they should err in favour of disqualification to uphold the principle that justice must be seen to be done. The Senior Member also acknowledged that expressing preliminary views does not necessarily create an apprehension of bias, provided the decision-maker's mind remains open to persuasion.

The Senior Member concluded that JWVH had not established actual or apprehended bias. Consequently, the application for recusal was refused.