Lever and Comcare (Freedom of information)

This matter concerned an application for the disqualification of a Deputy President of the Administrative Appeals Tribunal (AAT) on the grounds of actual bias. The applicant, Lever, had previously made a similar application which was dismissed by the Tribunal in June 2017. The current application was based on events alleged to have occurred after the decision on the first recusal application.

The legal issues before the Tribunal were whether the Deputy President had demonstrated actual bias in the conduct of the proceedings. This required the Tribunal to consider the stricter test for actual bias, which demands that such a claim be "distinctly made and clearly proved," as opposed to the test for apprehended bias which requires a reasonable apprehension of bias. The Tribunal was also required to consider the specific material relied upon by the applicant and establish a logical connection between that material and the alleged deviation from deciding the case on its merits.

The Tribunal noted that its powers under the Administrative Appeals Tribunal Act 1975 (Cth) differ from those of a court, including the ability to determine the scope of reviewable decisions and to conduct proceedings with less formality and technicality, not being bound by the rules of evidence. The Tribunal referred to established legal principles regarding claims of bias, including the two-stage test for apprehended bias outlined in *Ebner v Official Trustee in Bankruptcy*, which involves identifying the material relied upon and establishing the logical connection to a feared deviation from deciding on the merits. The Tribunal indicated it would consider the applicant's claims of actual bias in light of these principles.