Moodie v Racing Integrity Commissioner
[2017] VSC 693
•21 November 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 00476
| DAVID MOODIE | Plaintiff |
| v | |
| RACING INTEGRITY COMMISSIONER | Defendant |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 & 8 August 2017 |
DATE OF JUDGMENT: | 21 November 2017 |
CASE MAY BE CITED AS: | Moodie v Racing Integrity Commissioner |
MEDIUM NEUTRAL CITATION: | [2017] VSC 693 |
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JUDICIAL REVIEW – natural justice – apparent bias – application for declaration of breach – horse owner and director of Board of Racing Victoria allegedly disclosed information to horse trainers subject to cobalt investigation that their horses had tested positive – on referral from Racing Integrity Council of Racing Victoria, Racing Integrity Commissioner investigated allegations and made findings of misconduct against him – after delivery of confidential report to Racing Victoria, Commissioner unilaterally published media release disclosing findings and details of investigation – whether gave rise to reasonable apprehension of bias – whether fair-minded lay observer could reasonably conclude that Commissioner might not have fairly and impartially conducted investigation and made findings – standard of impartiality expected of persons exercising statutory investigative functions – Commissioner in position of accuser (in effect) and investigator and determiner (in fact) – relevance of subsequent conduct and statements when assessing whether a reasonable apprehension of bias can be maintained in respect of concluded proceeding or decision – Racing Act 1958 (Vic) ss 37A–37E, Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 56.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr S Wilson QC with Ms K Foley | Formerly Joy Popovska & Associates; currently Findlay Arthur Phillips |
| For the defendant | Ms M Richards SC with Mr J Bayly | Victorian Government Solicitor’s Office |
HIS HONOUR:
INTRODUCTION
Application for judicial review
The Racing Integrity Commissioner was obliged to exercise the investigative and like functions in pt 1A of the Racing Act 1958 (Vic) in respect of certain allegations about David Moodie, a racehorse owner and former director of Racing Victoria, in accordance with the rules of natural justice, which is to say, fairly and impartially. That rule is breached where a fair-minded lay observer might reasonably apprehend that, in exercising those functions, the Commissioner might have been biased. In this application for judicial review for declaratory and other relief, Mr Moodie contends that the Commissioner breached this rule when investigating, and making adverse findings in relation to, the matters concerning him.
Investigation and report of Commissioner
The circumstances were that stewards were investigating two trainers in relation to the alleged prohibited administration of cobalt to racehorses. A journalist received leaked information about the investigation, which he brought to the attention of Mr Moodie. Mr Moodie spoke with a third trainer, Peter Moody (no relation and note the different spelling), who was a trainer of Mr Moodie’s racehorses, about the information. When members of the Racing Victoria Integrity Council, which is part of Racing Victoria, were later informed of the conversation between Mr Moodie and Mr Moody, two members of the Council asked the Commissioner to investigate Mr Moodie’s actions.
Exercising his functions and powers under the Racing Act, the Commissioner did so, exercising personal responsibility for the ultimate scope and course of the investigation. He confidentially reported to Racing Victoria that Mr Moodie was not the original source of the leak but had inappropriately disclosed information about the cobalt investigation to Mr Moody and had failed to make adequate disclosure of this to the Council.
Consideration by Racing Victoria and Commissioner’s subsequent media release
By then, Mr Moodie had moved from being a director to being the chairperson of Racing Victoria, although he had stood aside pending the outcome of the investigation. After receiving the Commissioner’s report, the Board of Racing Victoria acknowledged that Mr Moodie was not the source of the leak and accepted his resignation from the Board for personal reasons. Having regard to the Commissioner’s report, it resolved to review the circumstances of the external dissemination of the information in question. It did not publicly release the report. Mr Moodie, who acknowledges that he could have ‘done better’, was thus allowed to resign with dignity.
The next day, the Commissioner issued a media release publishing information about the extensive nature of the investigation and the findings made, namely that Mr Moodie had inappropriately disclosed information about the cobalt investigation to Mr Moody and had knowingly provided misleading and/or incomplete information to the Council and the Board. Among other things, the Commissioner stated in the media release that the matters investigated had been substantiated, notwithstanding that Mr Moodie was not found to be the original source of the leak. Mr Moodie’s reputation was damaged by the release, which was published in the news media.
Judicial review and defamation proceedings
In two separate proceedings in this court, Mr Moodie has challenged the lawfulness of the Commissioner’s report and the statements made in his release. He does not challenge the Commissioner’s lawful capacity to conduct the investigation.
The first proceeding is the application for judicial review that I am here determining. This proceeding is by way of originating motion under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) seeking relief in the nature of certiorari quashing the report and also seeking declaratory relief that (among other things) production of the report went beyond the Commissioner’s powers under the Racing Act and constituted a breach of the rule against apprehended bias. In relation to the Commissioner’s powers, Mr Moodie relies upon well-developed submissions, which the Commissioner disputes, about the proper interpretation of ss 37A–37E of the Racing Act. In relation to the rule against apprehended bias, Mr Moodie relies (among other things) upon the Commissioner’s media release, which raises an issue about the relevance of subsequent conduct and statements when assessing whether a reasonable apprehension of bias can be maintained with respect to a concluded proceeding or decision.
The second proceeding is an application for damages for defamation. This proceeding is by way of writ and is presently at the pleading stage. A statement of claim, defence and reply have been filed and served. An amended statement of claim and amended defence have also been filed and served, and an amended reply is due to be filed and served. From these pleadings, it can be seen that the submissions advanced by Mr Moodie, and disputed by the Commissioner, in the defamation proceeding in relation to the statutory functions and powers of the Commissioner are the same as those advanced by him and disputed by the Commissioner on that issue in this judicial review proceeding.
Having heard and considered the submissions of the parties, I have concluded that it is not desirable in this judicial review proceeding to determine the issues that arise in relation to the statutory functions and powers of the Commissioner. In the first place, Mr Moodie would not be entitled to relief in the nature of certiorari even if I were to conclude that the Commissioner acted beyond power in producing the report because it had no direct legal significance.[1] I reject the submissions made for Mr Moodie to the contrary. None of the adverse consequences relied upon would flow from the report and its findings as distinct from the exercise of some separate and independent source of power. Secondly, while determining these issues would have some utility in the present proceeding, it would not be binding, and could give rise to unnecessary complications in the hearing and determination of the defamation proceeding (probably before a judge and jury), where these issues will be of more central concern. It is therefore not appropriate on a discretionary basis to determine these issues in this proceeding. Lastly, it is not necessary to do so because the substance of Mr Moodie’s complaints against the Commissioner can be addressed by reference to his claim that the report was produced in breach of the rules of natural justice upon the grounds of apprehended bias. In what follows, therefore, I assume without determining that the Commissioner had power to produce the report and issue the media release.
[1]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 [25] (French CJ, Crennan, Bell, Gageler and Keane JJ).
It is now necessary to say something more about the factual circumstances.
COMMISSIONER’S INVESTIGATION AND REPORT
Council’s referral and Commissioner’s investigation
As found by the Commissioner, in January 2015 stewards were investigating the prohibited administration of cobalt to racehorses by Victorian trainers. Information that horses trained by Mr Moody, Mark Kavanagh and Danny O’Brien had positive cobalt swab notifications was leaked to Patrick Bartley, a journalist, apparently by somebody within or connected with Racing Victoria. On 13 January 2015, conversations occurred between Mr Moodie and Mr Bartley, and then between Mr Moodie and Mr Moody. In later conversations on 14 January 2015, Mr Moodie conveyed certain information to Mr Moody. Members of the Council later became concerned that Mr Moodie, when a director of the Board, had thereby behaved inappropriately. There is no question that these were legitimate concerns.
The Racing Victoria Integrity Council is established under rule 5A of The Rules of Racing of Racing Victoria. Establishment of the Council was a recommendation of a review of integrity assurance in the racing industry,[2] which also led to the establishment of the Racing Integrity Commissioner by pt 2 of the Racing Legislation Amendment (Racing Integrity Assurance) Act 2009 (Vic) (see further below). Racing Victoria is the controlling body of horse racing in Victoria under the Racing Act (see the definition of ‘controlling body’ in s 3(1)(a)) and its rules are recognised in div 2B of pt 1. The Council has a Charter that sets out its structure, membership and functions (also see further below).
[2]Judge G D Lewis AM, A Report on Integrity Assurance in the Victorian Racing Industry (1 August 2008) 12–13 (recommendation 2).
Arising out of the concerns about the contact between Mr Moodie and Mr Moody, on 13 October 2016 the Chairman of the Council, Ron Beazley, contacted the Commissioner. As here described in the Commissioner’s report, Mr Beazley and another member of the Council met with the Commissioner:
RVL Integrity Council Referral
1.On Thursday 13 October 2016, the Chair of the Racing Victoria Limited (RVL) Integrity Council (IC), Mr Ron Beazley (Beazley), contacted me to request a meeting the following day as a result of a special RVL IC meeting held that morning. Beazley advised that the RVL IC wanted to bring to my attention an integrity issue involving RVL Chairman, Mr David Moodie. Namely, that when David Moodie was a RVL Director he disclosed information to Mr Peter Moody (Moody) about RVL cobalt investigations into Mr Mark Kavanagh (Kavanagh) and Mr Danny O’Brien (O’Brien).
2.On Friday 14 October 2016, as a result of that conversation, I met with Beazley and fellow RVL IC Independent Director, Ms Kate Joel, and received a formal written referral dated 13 October 2016 (Appendix 1). The RVL IC noted it did not have specific power to fully investigate these issues and believed that the matter was sensitive and of the highest importance to the racing industry.
3.In that letter, the RVL IC requested that I use my powers under the Racing Act 1958 (Racing Act) to investigate the conduct of David Moodie. The letter also advised that the RVL IC had decided that it was obliged to notify the RVL Board of the request and would request that David Moodie stand aside as RVL Chairman pending the outcome of my investigation.
4.On review of the information provided by the RVL IC, I was satisfied that there was sufficient information to warrant an investigation, pursuant to section 37B(1)(c) of the Racing Act, as the matters raised concerned the integrity processes and systems of a controlling body, namely RVL.
The letter that was handed to the Commissioner on 14 October 2016 was in the following terms:
Further to our telephone conversation of 13 October 2016, I confirm a meeting with you on Friday 14 October at 8.30 am, with myself and Kate Joel, independent members of the RVIC.
Council request, following consideration of matters placed before it at a special, urgent meeting held 13 October that you use your powers to investigate the conduct of the Chairman of RVL in respect of his conduct concerning disclosures of cobalt related matters. The Council notes it does not have specific power to fully investigate these issues.
The Council believes this sensitive matter is of the highest importance to the racing industry and appreciates your readiness to meet with us at such short notice.
The Council has decided that it is obliged to notify the RVL Board of this request to you and it will further request that the Chairman of RVL stand aside pending the outcome of any investigations.
From this description in the report of what was discussed at the meeting and the terms of the letter, it can be seen that the concerns expressed to the Commissioner by the members of the Council were fairly general and related to Mr Moodie’s disclosures of cobalt related matters (para 2 of the letter). As formulated by the Commissioner in his report, the ‘matters investigated’ were formulated in the following much more developed terms:
Matters Under Investigation
7.The matters investigated by me following the referral by the RVL IC are as follows:
7.1That whilst a RVL Director, David Moodie inappropriately disclosed information regarding cobalt investigations being undertaken by RVL into licensed racehorse trainers, Kavanagh and O’Brien to Moody, who was at that time, a licensed racehorse trainer, thus compromising, or potentially compromising, the integrity of the RVL cobalt investigations and the conduct of disciplinary and or prosecution hearings or actions arising out of those investigations.
7.2That David Moodie knowingly provided misleading and/or incomplete information to the RVL IC and/or the RVL Board, about the information he disclosed to Moody concerning the RVL cobalt investigations.
As so formulated, these matters have the appearance of misconduct allegations in relation to Mr Moodie personally. The evidence reveals that the Commissioner’s investigative activities were mainly directed at determining whether these matters were established. The Commissioner performed all of the functions of formulating the matters to be investigated, carrying out the investigation into those matters and determining whether the matters were established as a fact. I am not suggesting that it was improper for the Commissioner to do so and have assumed that it was open to him to exercise his powers in the way that he did. I am simply identifying certain facts about the exercise of the Commissioner’s powers that are relevant to determining whether it would be reasonable for a fair-minded lay observer to apprehend bias, as contended on behalf of Mr Moodie.
Consistently with the way in which the Commissioner formulated the matters to be investigated, his report contains a summary of the steps taken during the course of the extensive ‘investigation’ (para 8), which included interviewing over 30 persons and issuing seven summonses pursuant to s 37BA(1) of the Racing Act for the production of documents and the attendance by those persons to be questioned by the Commissioner under oath or affirmation.[3] The report outlines the ‘evidence’ (heading above para 16) that was taken in some detail (paras 13–146) and then makes certain ‘findings of fact’ (paras 147–70). It goes on to express certain general and specific conclusions (paras 171–203). The Commissioner’s central conclusion was that the matters ‘referred’ to him by the Council, as formulated in the report (see above), were ‘substantiated’ (para 189).
[3]Section 37BA(1)–(3) of the Racing Act permits the Commissioner to exercise certain specified compulsory production and examination powers in relation to certain categories of persons connected with the racing industry.
The findings and conclusions are adverse to Mr Moodie in many respects. These include conclusions, based on findings, that he passed on information that ‘compromised or potentially compromised the … cobalt investigations’ (para 183), made disclosures that were ‘not full and frank’ (paras 186–7), engaged in ‘totally inappropriate’ conduct (para 191), made ‘partially or delayed disclosure[s]’ that were ‘not in the best interests of’ Racing Victoria (para 194) and made no ‘formal or “official” disclosure’ (para 195). Many of these findings and conclusions are strongly disputed by Mr Moodie and the actual facts are in issue in the defamation proceeding. He does not dispute the finding that he was not the original source of the leak.
In the last paragraph, the Commissioner stated that the report was ‘provided to the [Council] in response to its referral’ (para 203) (emphasis added). This shows how he considered he was proceeding (see also paras 4, 189 and 202). There is nothing in the facts and circumstances of the case or the contents of the report to suggest that, as a matter of fact, he considered he was engaged in an own-motion inquiry.[4]
[4]This is not to say that, however the Commissioner considered he was proceeding, the own-motion (or other) powers under s 37B(1) of the Racing Act were not available in law to support his investigation and report, which are issues pleaded in the defamation proceeding.
Council’s consideration of report and Commissioner’s subsequent media release
The Commissioner’s report was provided in time for consideration by the Board of Racing Victoria at its meeting on 15 December 2016. As already noted, at that meeting Mr Moodie resigned from the Board and it noted the finding in the report that he was not the original source of the leak. Following the meeting, the Board issued the following media release:
DAVID MOODIE TENDERS RESIGNATION
The Racing Victoria (RV) Board today received and considered at its December meeting the findings of an independent investigation conducted by the Racing Integrity Commissioner, Sal Perna, following a referral from the RV Integrity Council.
The investigation centred upon allegations regarding the external dissemination of information from RV in January 2015 relating to the detection of positive Cobalt swabs by licensed trainers Mark Kavanagh and Danny O’Brien.
In considering the report from Mr Perna, the RV Board heard representations from David Moodie, who stood aside from his duties as RV Chairman on 14 October 2016 pending the outcome of the investigation.
RV Acting Chairman, Mike Hirst, has issued the following statement at the conclusion of today’s Board meeting:
‘In reviewing this matter the Board considered a range of points, including the confidential investigation by Sal Perna on behalf of the Racing Victoria Integrity Council. Mr Perna’s report found that David Moodie was not the source of the leak from Racing Victoria’, Mr Hirst said.
‘Given that finding, David today tendered his resignation from the Board of Racing Victoria with immediate effect to devote his energies to his personal operations. He believes that the decision is in the best interests of himself and his family, who have been through a difficult time over the past two months.
‘The Board has accepted his resignation and wishes to acknowledge the significant contribution made by David to the industry.
In light of Mr Perna’s Report and our considerations, the Board will now review the circumstances around the external dissemination of the information in question’.
With the departure of Mr Moodie, Mr Hirst will continue in his capacity as Acting Chairman. The Board will discuss the role of Chairman at its February Board meeting.
As can be seen, the Board accepted Mr Moodie’s resignation, thanked him for the significant contribution he had made to the industry and decided to review the circumstances around the dissemination of the leaked information in the light of the report.
As I have also already noted, the Commissioner himself stated that he provided the report to Racing Victoria through the Council in response to ‘its referral’ (para 203). On the evidence, it has not been released publicly at any time by anybody. It is expressed to relate to ‘sensitive’ matters (para 2). In the Board’s media release, the Acting Chairman of the Board described the investigation as ‘confidential’. On the whole of the evidence, I find that the Council, the Board and the Commissioner were proceeding upon the basis that, as a matter of fact and whatever was the legal position, the Commissioner’s investigation and report was and was to be confidential.[5]
[5]This is not to suggest that the Commissioner did not have power to release the report or disclose its findings and details of the investigation in the media release, which I have assumed he had.
However, on 16 December 2016 the Commissioner issued the following news media release:
MEDIA RELEASE
I am issuing this media release in response to requests for me to clarify the findings of my investigation into matters concerning David Moodie.
I consider it is necessary for me to make the following information available, in the interests of preserving the independence and professionalism of my office and the integrity of my investigation.
On Friday 14 October 2016, the Racing Victoria Limited (RVL) Integrity Council requested that I investigate integrity issues concerning David Moodie, the then RVL Chairman, inappropriately disclosing information regarding RVL cobalt investigations.
My investigation was conducted to establish whether David Moodie:-
a.inappropriately disclosed information regarding the positive cobalt swabs of Mark Kavanagh and Danny O’Brien, to Peter Moody, therefore compromising, or potentially compromising, the integrity of the RVL cobalt investigations and disciplinary and/or prosecution hearings or actions arising out of those investigations; and
b.knowingly provided misleading and/or incomplete information to the RVL Integrity Council and/or the RVL Board regarding his disclosures.
The conduct of my investigation included the interviewing of over 30 persons; the issuing of summonses for the production of documents and attendance of persons to be examined under oath by me; and collecting, collating and analysing information from a wide range of sources. In addition, a large volume of documents were obtained and reviewed, including telecommunications data, RVL Board and Integrity Council meeting minutes, Racing Appeals and Disciplinary Board (RADB) and Victorian Civil and Administrative Tribunal (VCAT) transcripts and RVL Stewards’ investigation files.
My report outlined a range of findings in regards to matters investigated and concluded that, notwithstanding that David Moodie was not the original source of the “leak”, both matters a) and b) above, had been substantiated.
It also included a finding as to the probable original source of the information regarding the positive samples of Mark Kavanagh and Danny O’Brien, which was subsequently passed on to David Moodie.
My report was provided to the RVL Integrity Council on Tuesday 14 December 2016 and has since been received and considered by the RVL Board.
As my report contains confidential and sensitive information, I do not intend to release the full report publicly. My findings and conclusions are now a matter for RVL.
The Commissioner did not give evidence in the proceeding in this court. His reasons for issuing the media release may be inferred from the contents of the report, the consideration of the report by the Board, the issuing of the release by the Board on 15 December 2016 and (especially) the contents of the release issued by the Commissioner himself. Taking into account this evidence, the Commissioner issued the release for the reasons expressed in the release, namely:
·‘in response to requests for me to clarify the findings of my investigation into matters concerning David Moodie’; and
·‘in the interests of preserving the independence and professionalism of my office and the integrity of my investigation’.
Whether a fair-minded observer might reasonably conclude that the release is evidence of apprehended bias on the part of the Commissioner is another matter.
As can be seen, the Commissioner’s release did not publish all of the report. It published only the findings or conclusions in the report that:
·Mr Moodie ‘was not the original source of the “leak”’; and
·the matters investigated in relation to Mr Moodie (see above) ‘had been substantiated’.
The Board did not publish this information. On the evidence, there was no reasonable prospect of this information being published in the foreseeable future, assuming that such publication could lawfully have been made by someone.
The extent to which the Commissioner’s media release published the contents of the report was selective. It did not publish other findings or conclusions in the report. Nor did it publish various comments or observations of concern made by the Commissioner in relation to racing integrity matters, the co-responsibility of Racing Victoria as a controlling body for the commercial and integrity aspects of the racing industry or the handling of the matters concerning Mr Moodie within Racing Victoria (see paras 177, 200–1). Again, such publication was not, on the evidence, a reasonable prospect.
The media release placed emphasis upon and gave details of the scope and intensity of the investigation carried out by the Commissioner in relation to the referred matters. It referred to summonses being issued, persons being examined under oath, information being obtained from a wide range of sources and information being analysed, including telecommunications data and information from various official racing and legal bodies. The apparent purpose of this part of the media release was to persuade the public that the findings of the Commissioner in the report were based upon a sound and reliable investigation. The release was therefore a direct appeal for public vindication of the investigation and the findings. At least a fair-minded minded observer could reasonably so conclude.
Consistently with the Board’s description of the investigation as being ‘confidential’ (see above), the media release stated that the Commissioner did ‘not intend to release the full report publicly’ (emphasis added) because it ‘contains confidential and sensitive information’. This part of the release inferentially stated that it contained an accurate partial release of the report, being the findings made that, notwithstanding that Mr Moodie was not the original source of the leak, the matters against him had been found to be substantiated, and upon the sound and reliable foundation of the investigation described (see above). The media release did not explain the reasons for making this partial release as distinct from a full release. I infer that the Commissioner’s actual purpose in making this partial release, as it was in issuing the release as such, was to clarify the findings of the investigation in response to requests and in the interests of preserving the independence and professionalism of the Commissioner’s office and the integrity of his investigation (see above). Again, whether a fair-minded observer might reasonably conclude that the release is nonetheless evidence of apprehended bias is another matter.
Because they are directly relevant to the application of the principles governing determination of that issue, I will next examine in more detail the statutory functions of the Commissioner.
STATUTORY FUNCTIONS OF RACING INTEGRITY COMMISSIONER
As already noted, the Racing Integrity Commissioner was established by pt 1A of the Racing Act following recommendations made by Judge G D Lewis AM in 2008.[6] While acknowledging arguments in favour of separating commercial activities from integrity services in the conduct and regulation of the racing industry, Judge Lewis did not recommend changing the current arrangements whereby controlling bodies are responsible for both functions. Rather, his Honour recommended, among other things, the establishment of integrity committees within controlling bodies[7] and establishing an independent racing integrity commissioner on a statutory basis.[8]
[6]Judge G D Lewis AM, A Report on Integrity Assurance in the Victorian Racing Industry (1 August 2008).
[7]Ibid 12–13 (recommendation 2).
[8]Ibid 13–14 (recommendation 3).
The Racing Victoria Integrity Council is the integrity committee within Racing Victoria that was established following Judge Lewis’s recommendations. As already noted, it was established by rule 5A of The Rules of Racing of Racing Victoria. Racing Victoria is certified under s 3A(1) of the Racing Act as the controlling body for horse racing in Victoria. The composition and functions of the Council are specified in rule 5A. It consists of five members, three of whom (including the chairperson) must be independent and two of whom must be non-presidential directors of Racing Victoria (rule 5A(1)(a)–(b)). Under its Charter, a quorum is two independent members and one Racing Victoria director member (page 1). It appears that the Council lacked a quorum when it made the subject reference to the Commissioner in the present case, but it is not necessary to go into the legal implications (if any) of that in this judgment.
When introducing the legislation establishing the Racing Integrity Commissioner, the Minister for Racing stated in the second reading speech:
The main objective of this bill is to provide for the implementation of a number of key measures aimed at strengthening the provision of integrity assurance in the Victorian racing industry.[9]
[9]Victoria, Parliamentary Debates, Legislative Assembly, 29 July 2009, 2386 (Robert Hulls, Minister for Racing).
The Minister went on to refer to Judge Lewis’s discussion of the need for, and functions of, the Commissioner:
Judge Lewis recommended that in order to protect the integrity of the racing industry as a whole, and so the public, there needed to be independent oversight of integrity issues across the codes. To this end Judge Lewis recommended the establishment of a racing integrity commissioner to facilitate the exchange of integrity-related information between the relevant bodies and agencies.
The racing integrity commissioner will be located within the Department of Justice.
The role of the racing integrity commissioner will be crucial to strengthening integrity assurance in the Victorian racing industry as it will involve:
the provision of advice on integrity across the three codes and the industry;
liaising with the racing industry concerning policies and practices relating to integrity; and
facilitating the exchange of strategic information between the controlling bodies, Victoria Police, Victorian Commission for Gambling Regulation and other agencies as appropriate.
The racing integrity commissioner will also:
receive quarterly reports detailing hearings before the racing appeals and disciplinary boards of the controlling bodies;
provide an annual report on his or her activities to the Minister for Racing, to be tabled in Parliament; and
have power to direct a racing appeals and disciplinary board to hear an appeal by a licensed person who has received a penalty below the appeal threshold amount if the racing integrity commissioner determines it is in the public interest that it be heard.
The racing integrity commissioner will work closely with the racing industry and Victoria Police to strengthen relations between all parties and improve the intelligence sharing between the relevant enforcement agencies on integrity-related matters.[10]
[10]Ibid 2387.
The Racing Integrity Commissioner was established as an independent statutory officer by s 37A(1) of the Racing Act and, under sub-ss (2) and (3), is appointed by the Governor in Council on the recommendation of the Minister for Racing for a period of up to five years. In relation to conducting inquiries, the powers of the Commissioner are specified in s 37BA. The general powers of the Commissioner are specified in s 37C. Under that provision, the Commissioner:
(a) has such powers as are conferred on him or her by this Act; and
(b)may do all other things necessary or convenient to be done for or in connection with, or as incidental to, the performance of his or her functions.
Section 37E(1) confers powers on the Commissioner to disclose integrity-related information (as defined in s 37E(2)) to certain specified bodies and persons.
As specified in s 37B(1), the functions of the Commissioner include the functions of conducting annual and other audits of the internal integrity processes and systems of controlling bodies (paras (a)–(ba)), investigating complaints (para (c)), referring complaints to specified bodies (para (d)), investigating matters referred by the Minister or a controlling body (para (e)), reporting on the findings of investigations conducted into complaints (not referred to other bodies) to the complainant, the Minister or the controlling body (para (f)), conducting own-motion inquiries (para (g)) and making recommendations following investigation of any complaint, inquiry or matter to the Minister or the relevant controlling body (para (h)). Where a controlling body fails to implement or act on such a recommendation, the Commissioner may advise the Minister after following a notification procedure (sub-s (2)(a)–(b)).
The functions of the Commissioner that are potentially relevant in the present case are those specified in s 37B(1)(c) and (e)–(h), which (in full) are to:
(c)investigate complaints made about the integrity processes and systems of a controlling body;
…
(e) investigate matters referred by the Minister or a controlling body;
(f)report the findings of any investigations conducted into complaints that have not been referred to other bodies to—
(i) the person that made the complaint; and
(ii)with or without identifying the person that made the complaint or the person that is the subject of the complaint, the Minister or the relevant controlling body (as the Racing Integrity Commissioner considers appropriate);
(g)conduct own motion inquiries that do not relate to any specific complaint and may include an investigation into systemic issues in racing;
(h)make recommendations (if appropriate) following the investigation of any complaint, inquiry or matter to (as the Racing Integrity Commissioner considers appropriate)—
(i) the Minister; or
(ii) the relevant controlling body;
…
While I will not be determining the competing submissions made about the precise scope of these functions, it is important to understand the general functions and powers of the Commissioner for the purposes of the application of the rules of natural justice, specifically the rule against apprehended bias (see below). Also relevant are the general powers of the Commissioner in s 37C. Moreover, the Commissioner relies upon the ordinary powers at common law that he possesses to ask questions and make inquiries.[11]
[11]Clough v Leahy (1904) 2 CLR 139 (the Commissioner referred in submissions to a number of cases in various jurisdictions in which these powers were applied).
As can be seen, under the provisions of s 37B(1)(c) and (e)–(h), the Commissioner has a range of responsive and own-motion functions in relation to the investigation of integrity and related matters in the racing industry. For the purpose of exercising these functions, the Commissioner has powers of compulsory examination of persons within the racing industry (s 37BA(1)–(3)), which invokes facilitative provisions of the Evidence (Miscellaneous Provisions) Act 1958 (Vic). As an independent monitoring and investigative body, the Commissioner may make decisions about how best to exercise these functions, including decisions about the appropriate formulation of the matters to be investigated or inquired into and the findings to be made.
Under principles to be discussed, for the purposes of the rules of natural justice, specifically the rule against apprehended bias, the standard of fairness and impartiality expected of the Commissioner is not that of a court but that of an investigative body having these responsive and own-motion functions and powers with respect to integrity and related matters in the racing industry. The Commissioner is not a prosecutor or adjudicator as such, although the functions conferred include conducting investigations and making findings and recommendations that may adversely affect the interests of individuals, particularly the reputational interests of individuals. It is this which gives rise to the Commissioner’s duty to observe the rules of natural justice by conducting investigations and making findings fairly and avoiding the creation of a reasonable apprehension of bias (see below).
As we have seen, the Commissioner carried out his functions in the present case by formulating two particular matters to be investigated. The Commissioner investigated these matters and found them to be substantiated. In doing so, his focus was upon Mr Moodie’s conduct rather than upon integrity processes and systems in the horse racing industry at a more general level. Making the assumption that the Commissioner was operating within the scope of his statutory functions, I think he had the power to formulate the matters to be investigated and determine what findings to make in the way that he did. Under the relevant provisions of s 37B(1), there is no necessary conflict between formulating the matters to be investigated and making findings in relation to those matters. As his statutory functions did not require these elements to be separated, he is not to be criticised for both formulating the matters to be investigated and making the findings that the matters were substantiated. The rules of natural justice, specifically the rule against apprehended bias, are to be so applied in this particular statutory setting. Under the governing principles, a fair-minded observer is to be attributed with the knowledge that such were the nature of the Commissioner’s particular statutory functions.
While these provisions of the Racing Act so inform the application of the rules of natural justice, they do not remove the obligation of the Commissioner to observe those rules, and specially the obligation to maintain the appearance of impartiality, under principles now to be discussed. Despite the investigative and inquisitorial nature of his functions and his powers to make findings, the Commissioner was still required to conduct himself in a manner that did not give rise to a reasonable apprehension of bias. While such an apprehension could not arise from the mere fact that the Commissioner had formulated and investigated, and made findings of substantiation in relation to, specified matters concerning an individual, it could arise in relation to the manner in which he carried out those functions and, I conclude below, by reference to his conduct and statements shortly after doing so.
REASONABLE APPREHENSION OF BIAS
General principles
The rule against apparent bias is one element of the rules of natural justice. As explained in the leading text,
these rules require that people be afforded a fair and unbiased hearing before decisions which affect them are made. This principle of common sense and common decency is shared by all democratic societies and their systems of jurisprudence.[12]
The purpose of the rules of natural justice are to protect and maintain public confidence in the administration of judicial, administrative and like systems, to enhance the quality and efficacy of adjudicative, investigative and other official processes and to ensure equal respect and consideration for the fundamental and universal dignity of individuals whose interests may be affected. As the passage quoted implies, these purposes reflect values that are of foundational importance to the rule of law and democracy.[13]
[12]Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) 387 (footnotes omitted).
[13]The same purposes and values are inherent in the human right to a fair hearing before an independent and impartial tribunal which, in Victoria, is specified in s 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
According to French CJ, Gummow, Hayne, Crennan and Kiefel J in Saeed v Minister for Immigration and Citizenship, these rules are implied (when not excluded) into statutes by a process of construction:[14]
[14](2010) 241 CLR 252, 258–9 [11]–[14].
In Annetts v McCann[15] it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power.[16] Brennan J in Kioa v West[17] explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:
[15](1990) 170 CLR 596 (‘Annetts’).
[16]Ibid 598 (Mason CJ, Deane and McHugh JJ).
[17](1985) 159 CLR 550, 609 (citation omitted).
[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that 'the justice of the common law will supply the omission of the legislature'. The true intention of the legislation is thus ascertained.
The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann.[18]
Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West.[19] A failure to fulfil that condition means that the exercise of the power is inefficacious.[20] A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid.[21]
In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by ‘plain words of necessary intendment’.[22] And in The Commissioner of Police v Tanos[23] Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from ‘indirect references, uncertain inferences or equivocal considerations’. Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles.
These principles apply in relation to the functions of the Commissioner under pt 1A of the Racing Act in the circumstances of the present case. However, as already emphasised and to be further discussed, account must be taken of the particular nature of those functions.
[18]Salemi v MacKellar [No 2] (1977) 137 CLR 396, 401 (Barwick CJ), 451 (Jacobs J) (‘Salemi’).
[19](1985) 159 CLR 550, 609.
[20]FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 409 (Brennan J).
[21]Salemi (1977) 137 CLR 396, 401 (Barwick CJ).
[22](1990) 170 CLR 596, 598.
[23](1958) 98 CLR 383, 396.
The rights and interests that are protected by the rules of natural justice are not confined to those of a legal nature and extend to interests that individuals have in maintaining their personal (and business) reputation.[24] As explained in Annetts by Brennan J, personal reputation is an interest that is protected by these rules in, for example, the context of statutory inquiries in which adverse findings may be made against individuals:[25]
Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made. In Mahon v Air New Zealand,[26] Lord Diplock said in delivering the judgment of the Privy Council that the repository of a power to inquire and make findings and who contemplates making an unfavourable finding ‘must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.’ This is a general principle which, subject to any contrary intention expressed or implied in the statute, applies to statutory inquiries in which the inquisitor is authorized to publish findings that might reflect unfavourably on a person's conduct. It has been applied to company investigations (In re Pergamon Press Ltd[27]) but it is not restricted to those inquiries: see the comments in National Companies and Securities Commission v News Corporation Ltd.[28]
The protection thus afforded to personal reputation illustrates the importance in the rules of natural justice of the purpose of ensuring equal respect and consideration for the fundamental and universal dignity of individuals whose interests may be affected; this purpose is also illustrated by the principle that an individual may obtain the remedy of a judicial declaration for vindication of their personal reputation where breach of the rules is established.[29] In cases like the present, persons who are the subject of the Commissioner under pt 1A of the Racing Act might have their reputation damaged by findings made, giving rise to an obligation on the part of the Commissioner to observe the rules of natural justice and access by individuals to that remedy where breach is established.
[24]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 578 (Mason CJ, Dawson, Toohey and Gaudron JJ) (‘Ainsworth’).
[25](1990) 170 CLR 596, 608–9; approved Ainsworth (1992) 175 CLR 564, 578 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[26][1984] AC 808, 820.
[27] [1971] Ch 388.
[28](1984) 156 CLR 296, 316, 324, 326.
[29]Ainsworth (1992) 175 CLR 564, 581–2 (Mason CJ, Dawson, Toohey and Gaudron JJ), 586–7 (Brennan J).
It was accepted by the parties in accordance with these general principles that, under pt 1A of the Racing Act, the Commissioner was obliged to observe the rules of natural justice when exercising his statutory functions of investigating and making findings in relation to the matters alleged against Mr Moodie, and that Mr Moodie’s personal reputation was adversely affected by those findings. It was therefore accepted by the parties that the Commissioner was obliged to exercise his functions in a manner that did not give rise to a reasonable apprehension of bias. These concessions were soundly given, but this is not to suggest that the rules of natural justice apply, or apply in the same way, whenever the Commissioner exercises his statutory functions.
As stated in Ebner v Official Trustee in Bankruptcy by Gleeson CJ, McHugh, Gummow and Hayne JJ, the test to be applied in determining whether a reasonable apprehension of bias has been established is:
whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide. That is the test to be applied in the present appeals, and it reflects the general principle which is to be applied to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information, or some other circumstance.[30]
It is established that this test applies not only to judicial proceedings but also to administrative and investigative proceedings.[31] However, as explained by Kiefel, Bell, Keane and Nettle JJ in Isbester v Knox City Council, the application of the test must recognise and accommodate the particular context:[32]
How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised.[33] The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made[34]as well as to have knowledge of the circumstances leading to the decision.[35]
Such considerations are taken into account in cases where, as here, the apprehension of bias is based upon subsequent conduct and statements (see below). These considerations are critically important in the present case. As I have discussed, the statutory functions of the Commissioner are investigative in nature, not adjudicative. The Commissioner can conduct responsive and own-motion investigations. A fair-minded observer is taken to be aware of this.
[30](2000) 205 CLR 337, 350 [33] (‘Ebner’).
[31]Ibid 343–4 [4].
[32](2015) 255 CLR 135, 146 [23] (‘Isbester’).
[33]Kioa v West (1985) 159 CLR 550, 612.
[34]Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, 459 [68].
[35]Stollery v Greyhound Racing Control Board (1972) 128 CLR 509, 519 (‘Stollery’).
Someone with statutory power adversely to affect the interests (including the reputation) of individuals is required to ensure that justice is not only done but is also seen to be done.[36] The power must be exercised in a manner that does not give rise to a reasonable apprehension of bias. The test of whether a reasonable apprehension of bias is established is one of objective possibility, not objective probability.[37] However, for the reasons explained by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka, the reasonable apprehension must be firmly established:
Although the law interposes the imputed consideration of a fair minded observer and speculates on whether that person ‘might’ (rather than ‘would’) entertain a reasonable apprehension of bias in the particular case,[38] the serious consequences that necessarily attend the affirmative conclusion oblige that it should be ‘firmly established’.[39] This reflects a recognition that decision-makers (whether in the judiciary, in adjudicative tribunals or elsewhere vested with public power) are human beings. They have foibles and personal characteristics that vary substantially, reflecting differences of view that also exist in the community at large. Being independent, such decision-makers, in their professional conduct and utterances, will often exhibit robust individuality that is characteristic of people who are obliged to make important and difficult decisions without fear or favour.[40]
[36]Ebner (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), citing R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259 (Lord Hewart CJ).
[37]Isbester (2015) 255 CLR 135, 155 [59] (Gageler J).
[38]Livesey v NSW Bar Association (1983) 151 CLR 288, 294 (‘Livesey’); Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 (‘Laws’).
[39]R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group(1969) 122 CLR 546, 553–4; R v Lusink; Ex parte Shaw (1980) 55 ALJR 12, 14; Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411, 427–8; cf Margaret Allars, ‘Procedural Fairness: Disqualification Required by the Bias Rule’ (1999) 4 The Judicial Review 269, 278.
[40](2001) 206 CLR 128, 158 [90] (Kirby J) (‘Epeabaka’).
An example of the application of the rules of natural justice, and specifically the rule against apprehended bias, in the racing industry is Stollery v Greyhound Racing Control Board.[41] After a hearing into the alleged offering of a bribe to an official, the Board found the owner guilty and disqualified him for 12 months. The official, who was effectively the accuser, was allowed to be present during the Board’s deliberations, but took no part in them. The High Court quashed the disqualification on grounds of reasonable apprehension of bias. Barwick CJ (McTiernan, Gibbs and Stephen JJ agreeing) held:
The basic tenet that justice should not only be done but be seen to be done does not, of course, warrant fanciful and extravagant assertions and demands. What justice requires will ever depend on circumstances, and the degree to which it should be manifest that it is being done will likewise be related to the particular situation under examination by a supervising tribunal. But, in my opinion, dissatisfaction engendered in the mind of an observer aware of the facts, by the continued presence of Mr Smith in this board room, having regard to his personal connexion with the matter in hand, is not extravagant or far-fetched. As I have said, a reasonable man could very properly suspect that the clear opportunity which Mr Smith had for influencing the decision of the Board might well have been used.[42]
As can be seen, the Chief Justice emphasised that ‘fanciful and extravagant assertions’ could not give rise to a reasonable apprehension of bias. Gibbs J (Stephen J agreeing) held that the vice in the official being present during the Board’s deliberations was:
he was, perhaps not technically, but in truth and substance, and not merely formally, making a charge against the [owner] of a breach of the rules.[43]
[41](1972) 128 CLR 509.
[42]Ibid 519.
[43]Ibid 527.
Although Deane J was in dissent in the result in Webb v R,[44] his Honour’s judgment in that case has been influential in a number of respects. I refer below to the judgment in relation to the relevance of subsequent conduct and statements. I refer here to his Honour’s four-part categorisation of the cases covered by the rule against apprehended bias:
The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first[45]and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third[46] and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.[47]
Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner regarded this categorisation as a ‘convenient frame of reference’.[48] It is referred to in the above statement of the governing test made in that judgment. In the present case, Mr Moodie relies mainly upon the Commissioner’s conduct in publishing the media release after the report was provided to Racing Victoria (see above). It is better perhaps to consider the case under the overlapping categories of disqualification by interest and conduct (see below).
[44](1994) 181 CLR 41 (‘Webb’).
[45]Eg, a case where a dependent spouse or child has a direct pecuniary interest in the proceedings.
[46]Eg, a case where a judge is disqualified by reason of having heard some earlier case: see, eg, Livesey (1983) 151 CLR 288; Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411.
[47]Webb (1994) 181 CLR 41, 74.
[48](2000) 205 CLR 337, 348–9 [24].
In Isbester, Kiefel, Bell, Keane and Nettle JJ considered that the question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality was ‘largely a factual one’.[49] Drawing on Ebner,[50] their Honours stated that an application of the test required two steps to be taken:
The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an ‘interest’ in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng,[51] essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.[52]
In the present case, it was submitted for Mr Moodie that the publication of the media release might reasonably establish in the mind of a fair-minded lay observer that the Commissioner might not have conducted the investigation and made findings against Mr Moodie on the factual merits (step one). The logical connection between the publication of the release and the feared deviation from that standard of impartiality was that the publication of the release, having regards to its contents, demonstrated that the Commissioner might have taken a ‘set’ against Mr Moodie and became personally committed to finding that the matters investigated against him were substantiated (step two).
[49](2015) 255 CLR 135, 146 [20].
[50](2000) 205 CLR 337, 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[51](2001) 205 CLR 507, 563 [183].
[52]Isbester (2015) 255 CLR 135, 146 [21]; cf 155–6 [59] (Gageler J) (three steps).
Mr Moodie’s submissions in this connection reflect to some extent the discussion in Isbester[53] and Stollery[54] about the reasons of principle supporting separation of the accusatorial and adjudicative functions. However, the proceedings in Isbester and Stollery were respectively judicial and adjudicative in nature and the Commissioner’s statutory functions are investigative, as I have emphasised. Therefore, in the analysis that is carried out below, account is taken to that fundamental distinguishing feature of the Commission’s functions. Before carrying out that analysis, I will discuss the principles governing the relevance of subsequent conduct and statements.
[53](2015) 255 CLR 135, 149 [34], 152 [46] (Kiefel, Bell, Keane and Nettle JJ), 156–7 [63]–[64] (Gageler J).
[54](1972) 128 CLR 509, 519 (Barwick CJ, McTiernan, Gibbs and Stephen JJ agreeing).
Subsequent conduct and statements
Mr Moodie’s submissions in relation to apprehended bias rely heavily upon the media release that was published by the Commissioner very shortly after his report was provided to Racing Victoria. This leads to consideration of whether, and to what extent, the conduct and statements of a decision-maker or other facts occurring subsequent to the making of the operative decision can give rise to (or remove) a reasonable apprehension of bias.
The issue arose in the High Court in Webb[55] where a juror in a murder trial gave a bunch of flowers to the mother of the deceased. After receiving an apology from the juror, the trial judge gave her a stern impartiality direction. By a majority, it was held that the judge had correctly allowed the trial to continue to verdict. Mason CJ and McHugh J held that the juror’s conduct gave rise to a reasonable apprehension of lack of impartiality,[56] but the judge in the subsequent direction addressed it.[57]
[55](1994) 181 CLR 41.
[56]Ibid 55.
[57]Ibid 55–6; see also Toohey J at 88. Of course a court of appeal or judicial review might find that a correcting direction was not adequate: see, eg, Penfold v R [2016] NSWCCA 101 (2 June 2016) [24] (RA Hulme J, Bathurst CJ and Hall J agreeing).
In dissent, but not on this point of principle, Deane J expressly decided that the material objective facts of which a fair-minded observer is taken to be aware are not to be confined to those that are apparent at the time of the impugned decision or conduct:
The fair-minded observer is a hypothetical figure. While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court,[58] as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court.[59] The material objective facts include, of course, any published statement, whether prior, contemporaneous or subsequent, of the person concerned.[60]
This statement of Deane J in Webb has been oft-approved.[61]
[58]See Laws (1990) 170 CLR 87 (Mason CJ and Brennan J): ‘we must attribute to him or her knowledge of the actual circumstances of the case’; S & M Motor Repairs v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358, 368–9, 381; R v Morris (1991) 93 Cr App R 102, 106 (Farquharson LJ): ‘a reasonable and fair-minded person sitting in the court and knowing all the relevant facts’.
[59]See Livesey (1983) 151 CLR 299; Vakauta v Kelly (1989) 167 CLR 573, 585; Laws (1990) 170 CLR 87–8, 98.
[60]Webb (1994) 181 CLR 41, 73 (Deane J).
[61]See Bannister v Walton [1996] NSWCA 42 (1 April 1996) 8–9 (Sheller JA, Powell and Cole JJA agreeing) (‘Bannister’); R v RPS (Unreported, New South Wales Court of Appeal, 13 August 1997) 32 (Hunter CJ at CL, Gleeson CJ and Hidden JJ agreeing) (‘RPS’); Clenae Pty Ltd v ANZ Banking Group Ltd [1999] 2 VR 573, 583 [30] (Charles JA, Winneke P agreeing) (‘Clenae’) (affirmed in Ebner (2000) 205 CLR 337); State of Victoria v Psaila [1999] VSCA 193 (29 November 1999) [34] (Brooking JA, Batt JA agreeing), [51] (Ormiston JA) (‘Psaila’); Hagen Corporation Pty Ltd v Bikes Top End Pty Ltd (2015) 35 NTLR 87, 104 [63] (Kelly J) (‘Hagen’).
In the High Court in Epeabaka,[62] a member of the Refugee Review Tribunal published an article in October 1997 after the relevant decision was made in January 1997. The article discussed the author’s personal views in relation to being a member of the Tribunal. He included statements about applicants telling lies.
[62](2001) 206 CLR 128.
Argument was heard as to whether conduct after a decision could be relied upon to make out a case of apprehended bias. Gleeson CJ, McHugh, Gummow and Hayne JJ held:
In theory, there is no reason why not. In practice, the substantial interval between such conduct and the decision might make the case harder to establish.[63]
Kirby J held that ‘[l]ater statements may suggest earlier bias’.[64] The same principle can apply in reverse: by way of exculpation, account may be taken of acceptable explanations provided by judicial officers after the occurrence of circumstances allegedly giving rise to an appearance of bias.[65]
[63]Ibid 139 [29].
[64]Ibid 153 [75] (heading).
[65]See, eg, Johnson v Johnson (2000) 201 CLR 488, 494 [14] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Ferguson v Cole (2002) 121 FCR 402, 418 [49] (Branson J); RPS (Unreported, New South Wales Court of Appeal, 13 August 1997) 32 (Hunter CJ at CL, Gleeson CJ and Hidden JJ agreeing); Monroe Australia Pty Ltd v Burian [1998] SASC 6578, 8 (Doyle CJ, Cox and Williams JJ agreeing) (‘Monroe’).
Accepting that conduct occurring after a decision can be relevant to whether apprehended bias is established, the High Court held (in the words of Kirby J) that it was not sufficient to demonstrate ‘merely a sense of unease or a feeling that conventions of discretion and prudence have been breached’.[66] The court carefully analysed the contents of the article and determined that, on a fair reading, it would not lead a reasonable observer to conclude that the judicial officer’s general observations about his position meant that he might not have judged the individual case fairly and impartially.[67] By contrast with the present case, the article in question was not directly related to the relevant decision.
[66]Epeabaka (2001) 206 CLR 128, 158 [90].
[67]Ibid 139-40 [30]-[34] (Gleeson CJ, McHugh, Gummow and Hayne JJ), 158–9 [90]–[96] (Kirby J).
In the Victorian Court of Appeal in State of Victoria v Psaila,[68] the same trial judge had made comments from the bench in one trial about the appellant wasting costs and causing delay in the light of proposed legislative changes and had also made similar comments in a subsequent trial. Brooking JA (Batt JA agreeing) saw the case[69] as one of ‘disqualification by conduct, including published statements’, referring to the broad classification of Deane J in Webb.[70] His Honour expressly rejected the submission that the judge’s remarks in the second trial were not relevant:
I see no reason in principle why, where ostensible bias by reason of conduct is alleged, the conduct which is said to suggest lack of impartiality may not take place before, during or after the proceedings. Indeed, I do not see why the ostensible bias should not be found, for example, wholly in statements made before the proceedings had begun, or wholly in statements made after they had concluded. In the present case the party complaining attempts to reinforce impressions created by the conduct on which it relies during the proceedings by reference to conduct in another case after those proceedings had concluded. I do not see why this may not be done, provided always of course that the subsequent conduct relied on can rationally be said to bear upon whether the judicial officer was likely to decide the earlier case without bias. When I speak of conduct I of course include statements; indeed, the conduct will usually take that form. It would be a remarkable thing if a judicial officer could, shortly after deciding a case, make comments which could reasonably be regarded as suggestive of bias against one of the parties and yet the decision be immune from attack unless the remarks were such as to show actual bias notwithstanding that a clear case of ostensible bias could be established by them assuming that they were available for that purpose.[71]
His Honour held that this was especially so because the judge’s remarks in the second trial were intended to be explanatory of his remarks in the first trial.[72] After a careful examination of the factual circumstances, he concluded that the appearance of bias was firmly established in relation to both trials,[73] the evidence of the judge’s remarks in the second being relevant to the first.
[68][1999] VSCA 193 (29 November 1999).
[69]Ibid [32].
[70]See (1994) 181 CLR 41, 74.
[71]Psaila [1999] VSCA 193 (29 November 1999) [32] (Brooking JA, Batt JA agreeing); at [32] and [35], Brooking JA (Batt JA agreeing) referred with approval to Clenae [1999] 2 VR 573, 583 [30] (Charles JA); Bannister [1996] NSWCA 42 (1 April 1996) 9 (Sheller JA); Monroe [1998] SASC 6578, 7 (Doyle CJ); RPS (Unreported, New South Wales Court of Appeal, 13 August 1997) 31 (Hunt CJ at CL).
[72]Ibid [33].
[73]Ibid [36]–[42].
In the Federal Court of Australia in MZWCL v Minister for Immigration and Multicultural and Indigenous Affairs,[74] an appeal was brought against a decision of the Refugee Review Tribunal refusing to grant the applicant a protection visa on grounds of refugee status. Finn J had to determine whether to grant leave to amend the notice of appeal. The applicant wanted to contend that the member constituting the Tribunal was apparently biased. The circumstances were that the applicant had discovered that, at about the time that the decision was made, the member had published an academic article arguing that torture was morally acceptable in some circumstances.
[74][2006] FCA 635 (20 July 2006) (Finn J).
Applying the approach adopted by the High Court in Epeabaka, Finn J did not doubt that subsequent conduct could be relevant to whether apprehended bias was established. But his Honour held that the member’s article did not give rise to a reasonable apprehension of bias, even though it was ‘imprudent and indiscreet’ for him to publish it.[75] The lack of any connection between the decision and article was the fatal consideration:
For the bias rule to avail the appellant there must be such a connection between the views expressed in the article and the issues determined by the Tribunal member in the appellant’s case as to firmly establish the possibility of an operative preformed judgment in the determination of those issues. I do not consider there to be such a connection. The particular sub-species of torture with which the article was concerned was not in issue in the appellant’s case. There is nothing in the article to suggest that the authors condoned the infliction of torture beyond the discrete area that they would wish to privilege. They continue to accept that torture beyond that area would involve a violation of fundamental rights. Accordingly, while expressing the views contained in the article may itself engender a sense of unease in the fair minded observer, the article is not capable in my view of satisfying the bias test. The member is not to be disqualified, absent some proper connection between the article and the issues determined by the Tribunal, simply because the burden of the article is likely to attract criticism and condemnation. The rule curtails freedom of speech, but only measuredly so for its own purposes.[76]
In the present case, we will see that such a connection is established.
[75]Ibid [46].
[76]Ibid [47].
Hagen Corporation Pty Ltd v Bikes Top End Pty Ltd may be mentioned because the issue arose in that case in a way that helps us to distinguish the present case.[77] After delivering judgment for the defendant in a civil proceeding, a magistrate communicated with another magistrate whose husband held a position of management with the defendant. It was found that, in the conversation, the magistrate ‘more or less’ invited the defendant to apply for indemnity costs, which the defendant did.
[77](2015) 35 NTLR 87 (Kelly J).
Upholding the appeal and setting aside the whole of the magistrate’s judgment, Kelly J held that a reasonable apprehension of bias was established for the following reasons (as expressed in a ground of the amended notice of appeal that was upheld):
7.1The communication in effect went further than merely identifying outstanding issues but suggested any application for indemnity costs may well be successful;
7.2The communication was passed on by [the magistrate] to the [defendant] and/or its legal advisors and seems likely to have influenced the [defendant’s] decision to seek indemnity costs;
7.3The communication was raised by the trial magistrate with one party without the previous knowledge or consent of the other party;
7.4The trial magistrate failed subsequently to expressly acknowledge or to disclose the fact or particulars of such communication;
7.5The fact that such communication was made to [the magistrate] elevates the initial concerns of a party over a magistrate deciding a case involving (by close relationship) a fellow magistrate, to the level of reasonable apprehension that an impartial mind has not been brought to bear;
7.6The trial magistrate appears to have seen nothing wrong in so doing such that serious questions arise as to the extent if any to which this matter has been quarantined from a fellow magistrate with a personal interest in this matter …[78]
By contrast, the present case involves no third-party communications and the Commissioner was performing an administrative investigative function, not an adjudicative function. Nonetheless, as we will see, the publication of the release and its contents are relevant.
[78]Ibid 94 [27].
Therefore, where persons exercising judicial, administrative or like functions engage in conduct or make statements after the relevant decision or proceeding has been made or concluded and the conduct or statement has some connection with the course or subject matter of the decision or proceeding, the conduct or statement may be relied upon to establish (or remove) a reasonable apprehension of bias. As is the case generally, the reasonable apprehension of bias must be firmly established. It is not sufficient that the conduct or statement is merely indiscreet, imprudent or unwise. The nature of the conduct and the content of the statement must be carefully examined to determine whether any apprehension of bias is reasonable in the circumstances. The closer is the conduct or statement in point of time to the relevant decision or proceeding and the closer is the connection between the nature of the conduct and the content of the statement and the decision or proceeding, the more persuasive it may be in relation to whether a reasonable apprehension of bias has been so established.
In the present case, very soon after the Commissioner produced the report and provided it to Racing Victoria, he published the media release. The temporal connection is therefore close. The subject matter of the release concerned the findings made by the Commissioner, the nature and scope of the investigation that he conducted and the reasons why he published the release. These matters relate directly to the investigation and the findings. The connection between the publication of the release and the alleged apprehension of bias is that the publication of the release and its contents suggest that the Commissioner might have been personally committed to finding that the matters alleged against Mr Moodie were substantiated. Therefore, in the analysis that follows, the publication of the release and its contents are relevant facts to be taken into account.
WHETHER REASONABLE APPREHENSION OF BIAS ESTABLISHED
On the principles just discussed, the issue to be determined is whether Mr Moodie has firmly established a reasonable apprehension of bias in relation to the investigation carried out by the Commissioner and the findings made in his report. This depends upon whether a fair-minded lay observer might reasonably apprehend that the Commissioner might not have brought an impartial mind to bear upon the conduct of the investigation and the making of the findings. The fair-minded observer is taken to understand the particular investigative nature of the Commissioner’s statutory functions, the context of the facts and circumstances in which he commenced and conducted the investigation and made his findings, and published the media release. The apprehension of bias must be reasonable and not based upon fanciful and extravagant considerations. The publication of the media release by the Commissioner and its contents represent subsequent conduct and a subsequent statement that may be taken into account. It is not sufficient that the publication of the release was merely indiscreet, imprudent or unwise.
It was submitted for the Commissioner that a reasonable apprehension of bias has not been established. In those submissions, reliance was placed upon the lawfulness of the Commissioner’s actions, under both pt 1A of the Racing Act and the common law. I repeat that I am assuming that the Commissioner was at all times acting lawfully. Therefore I am assuming that he was not functus officio when he issued the release.
The submissions placed emphasis upon the Commissioner’s continuing responsibilities in relation to integrity matters in the racing industry (see especially s 37B(1)(g)–(h) of the Racing Act). It was submitted that a fair-minded observer would consider the fact and contents of the release with this in mind and could reasonably conclude only that the Commissioner issued the release in accordance with those responsibilities. It could not reasonably be concluded that the publication of the release and its contents show that the Commissioner might have had a set against Mr Moodie and had become personally committed to finding the matters alleged against him to be substantiated.
It was submitted that Racing Victoria’s media release represented a complete misrepresentation of the conclusion that was reached in the report because it stated only that the report found that Mr Moodie was not the original source of the leak. This was a complete misrepresentation because, whatever the source of the information provided by Mr Moodie to Mr Moody (the report found that it was the journalist: see above), it was still a leak by a director of Racing Victoria to a trainer whose horses had been tested positive for cobalt. As the Commissioner had ongoing responsibilities for integrity matters in the racing industry, including responsibility to conduct own-motion inquiries if necessary, he had a legitimate reason for correcting or clarifying the record in the way that he did.
By reference to Ferguson v Cole,[79] it was submitted, and I accept, that the Commissioner was entitled to formulate questions, have suspicions that are tested by asking questions, select witnesses or persons of interest for questioning and even form and announce preliminary conclusions, none of which can give rise without more to a reasonable apprehension of bias in the sense of pre-judgment. As Gleeson CJ and Gummow J (Hayne J agreeing) said in Minister for Immigration and Multicultural Affairs v Jia Legeng:
[t]he question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.[80]
[79](2002) 121 FCR 402, 422 [67]–[69] (Branson J).
[80](2001) 205 CLR 507, 531 [71]–[72].
By reference to the judgment of Gageler J in Isbester,[81] it was submitted that, to establish a reasonable apprehension of bias, Mr Moodie has to identify the factor of influence, articulate how this factor might have caused a deviation from neutral evaluation on the merits and establish that the apprehension that it might have done so was reasonable. Taking the publication of the release as step one, it was submitted that Mr Moodie had simply not engaged with steps two and three. Publication of the release does not suggest that the Commissioner’s investigation and report might not have been impartial. No apprehension of that kind could reasonably be entertained.
[81](2015) 255 CLR 135, 155–6 [59].
While I accept the submissions made for the Commissioner in relation to the general legal principles, I do not accept that Mr Moodie has not established that a fair-minded lay observer might reasonably apprehend that the Commissioner might not have conducted his investigation and made the findings in the report impartially. My reasons for that conclusion are as follows.
Although I have assumed that the Commissioner had continuing statutory responsibility for integrity matters in the Victorian racing industry, as a fact he commenced and carried out the investigation and made the findings in response to the referral, which he treated as coming from the Council and therefore from Racing Victoria. His report, which he provided to Racing Victoria, makes this unequivocally clear (see especially paras 4 and 202–3). This is not to say that the Commissioner’s own-motion functions in s 37B(1)(g) were not applicable or available but that, in fact, the investigation was commenced and carried out and the report was provided in consequence of the referral.
The terms of the referral were rather general and the Commissioner formulated the matters to be investigated under two heads (see above). I accept that he was entitled to do so. The two matters to be investigated do not relate to systemic integrity matters in the horse racing industry as such but concern Mr Moodie personally. They involve allegations of: inappropriate disclosures of information; disclosures having the consequence of compromising or potentially compromising the integrity of investigations and the conduct of disciplinary or prosecutorial actions; and knowingly providing misleading and/or incomplete information to the Council or the Board about these disclosures. As so formulated, these matters are in the nature of allegations of misconduct concerning Mr Moodie as an individual.
I accept the submissions made for the Commissioner that the two formulated matters were not charges in any formal sense. The Commissioner was not conducting a criminal or disciplinary hearing, or even investigating criminal or disciplinary charges. He was not a prosecutor or judge as such. He was carrying out an investigation into alleged misconduct, about which he was entitled to make findings. However, the exercise of his statutory functions and powers placed him in the position of being the accuser (in effect) and the investigator and the determiner (in fact) in relation to the misconduct alleged against Mr Moodie. Thus he: formulated the two particular matters of alleged misconduct; investigated whether the misconduct so formulated had occurred; and made findings that the misconduct so formulated was substantiated by the evidence.
I have assumed that, exercising his functions and powers under pt 1A of the Racing Act, the Commissioner was entitled to conduct the investigation and make the findings that he did in this manner. But he was obliged to do so in accordance with the rules of natural justice. This (among other things) meant that he had to ensure that the functions and powers were exercised so as not to give rise to a reasonable apprehension of bias. This obligation was all the more pressing because the subject matter of the investigation was misconduct alleged against an individual in respect of whom the Commissioner was the accuser (in effect) and the investigator and determiner (in fact).
The hypothetical fair-minded observer is taken to be aware of the Commissioner’s particular statutory functions, and that he could lawfully formulate, investigate and make findings in relation to the matters of misconduct alleged against Mr Moodie. The observer is taken to be aware that the Commissioner was an investigator, not a prosecutor or a judge. The observer is taken to be aware of the background and circumstances of the making of the referral, the commencement and conduct of the investigation and the production of the report. Nonetheless, the observer would see that the subject-matter of the report was the alleged misconduct of an individual in respect of whom the Commissioner was the accuser (in effect) and the investigator and determiner (in fact).
Possessed of this information, a fair-minded lay observer could not maintain a reasonable apprehension of bias upon the basis of the contents of the report. I reject the submissions made for Mr Moodie to the contrary. However, this does not mean that the conduct of the investigation and the findings made are immune from attack upon the grounds of apprehended bias, which is concerned with the procedure by which a decision is made, not with the content of the decision itself.[82] In relation to whether apprehended bias has been established, the real issue in the case is whether the publication and contents of the release by the Commissioner reasonably gives rise to that apprehension. For the following reasons, I accept the submission made for Mr Moodie that it does.
[82]Ainsworth (1992) 175 CLR 564, 597 (Brennan J).
Assuming that publication of the release was lawful, it was the result of a discretionary decision voluntarily made by the Commissioner himself. Publication of the release was not lawfully required in the exercise of any of the Commissioner’s functions under statute or otherwise. To the extent that the release disclosed the findings in the report, the position is the same. The Commissioner’s decision to disclose these findings was personal and voluntary, not legally mandatory. Because the Commissioner personally and voluntarily published the release with the statements that it contains so soon after the report was delivered to Racing Victoria, I think it would naturally engender concern in the mind of a fair-minded lay observer about the impartiality of the conduct of the investigation and the findings made in the report.
The evidence establishes that the Commissioner and Racing Victoria treated the investigation and the report as confidential (see above). While I have assumed in the Commissioner’s favour that he nonetheless had power to publish the release and its contents, doing so represented a departure from that understood position. In the circumstances, I think the publication of the release could fairly be described as (at least) surprising.
The disclosures in the release were selective and partial. It disclosed the findings and details of the scope and nature of the investigation (see above). I accept the submissions made for Mr Moodie that this placed him in a very difficult position, because the evidence on which the findings were based and the reasoning supporting those findings were not disclosed for public examination. The selective and partial publication put the position of the Commissioner at its highest and placed the position of Mr Moodie at its lowest. On the evidence in this proceeding, a fair-minded observer could not reasonably conclude that this was the Commissioner’s actual intention, for his reasons in publishing the release were (among others) to protect the integrity of his office. But it could reasonably be concluded that, in so conducting himself, the Commissioner was not sufficiently conscious of giving effect to his obligation to avoid creating a reasonable apprehension of bias, which was also inherent in his office. Protecting the integrity of a statutory office cannot be at the expense of observing the rules of natural justice, and specifically observing the obligation to avoid conduct and statements that might give rise to a reasonable apprehension of bias. Sacrificing the natural justice that is due to individuals in virtue of their fundamental and universal dignity and humanity cannot be part of the means of achieving that official end.
The evidence establishes that the report was provided by the Commissioner to Racing Victoria in accordance with the referral, as would be expected having regard to the way in which the investigation commenced. There is nothing to suggest that the Commissioner intended to publish the report, in part or in whole, directly or indirectly, to any other person or body or generally, before Racing Victoria accepted Mr Moodie’s resignation and published its media release on 15 December 2016 (see above). Assuming that the Commissioner had power to publish the release and its contents, the evidence establishes that his decision to do so was responsive. It was responsive to the actions of Racing Victoria, not directed at an issue of integrity that the Commissioner was otherwise intending to address by publishing the release in the way that he did.
Consistently with the commencement of the investigation as a fact with the Council’s referral, all relevant participants in the process treated the investigation as confidential. The report was provided to Racing Victoria confidentially. Accordingly, I think a fair-minded observer would be concerned to see that, in the release, the Commissioner disclosed to the whole world the findings made against Mr Moodie, and that the Commissioner was seeking public vindication of those findings by describing the extensive scope of the investigation and the evidence that he obtained. As the Commissioner was the accuser (in effect) and the investigator and determiner (in fact), I think an apprehension of bias naturally arises in these circumstances. The apprehension is that, in discharging his statutory functions, the Commissioner had became personally committed to making adverse findings against Mr Moodie, which he was attempting to vindicate and justify in the public realm by publishing the release. In deciding whether such an apprehension would be reasonable rather than fanciful or exaggerated, and in deciding whether the publication of the release with the statements that it contains was more than simply indiscreet, imprudent or unwise, the Commissioner’s reasons for publishing the release would require examination.
As set out above, the first reason given is to respond for requests for clarification of the findings of the investigation into the matters concerning Mr Moodie. In the absence of further information, it is very difficult to evaluate this reason. The makers of the requests and the clarification sought are not identified and there is an unsatisfactory air of mystery about this aspect of the matter. In the absence of more information, this reason simply does not assist a fair-minded lay observer who is attempting to understand why the Commissioner would publicly disclose the adverse findings made against Mr Moodie, and the scope of the investigation and evidence obtained, in a report that was provided confidentially to the referring body.
The second reason given is to preserve the independence and professionalism of the Commissioner’s office and the integrity of his investigation. Knowing all of the facts and circumstances and understanding the nature of the Commissioner’s functions and continuing responsibilities, I think a fair-minded lay observer would understand this to be a reference to the decision by Racing Victoria to allow Mr Moodie to resign with dignity and issue a media release noting the Commissioner’s finding that he was not the original source of the leak. As the Commissioner’s release itself states, he found the matters alleged against Mr Moodie to be substantiated notwithstanding that he found him not to be the original source of the leak, which Racing Victoria’s release does not mention.
I can appreciate why the Commissioner may have been personally disappointed with the immediate reaction of Racing Victoria to the report and its findings. But even assuming in the Commissioner’s favour that he had power to publish the release and its contents, the report was provided to the Board of Racing Victoria in response to the referral and it acted upon the report in the exercise of its responsibilities as the controlling body of horse racing in Victoria. There is no evidence that Racing Victoria actually rejected the findings in the report, and it did not publicly do so. Its release suggests to the contrary. It was a question of what should be done in response to the report and its findings. The Commissioner’s independence and professionalism was not questioned by Racing Victoria or anyone else; nor was the integrity of his investigation. The report spoke for itself in terms of the independence and professionalism of the Commissioner and the integrity of the investigation.
In the end, I do not think that the apprehensions that are raised by the publication of the Commissioner’s release are removed by the reasons that have been given for doing so. In the unusual facts and circumstances of this case, I think it is reasonable for a fair-minded lay observer to apprehend that the Commissioner’s conduct in issuing the release might have been due to him having identified himself too personally with the interests of the accuser in the conduct of the investigation and the making of the findings. Therefore a reasonable apprehension of bias has been established, firmly. In accordance with established principles, there will be a declaration to that effect for the vindication of Mr Moodie’s right to protection of his personal reputation. It is what the law can do, and should do, to ‘redress some of the harm done’.[83]
[83]Ibid 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
CONCLUSION
It has been established that, on a referral from the Racing Victoria Integrity Council of Racing Victoria, the Commissioner exercised his functions under pt 1A of the Racing Act to conduct an investigation and make findings in relation to allegations of misconduct against Mr Moodie. In exercising those functions, the Commissioner was placed in the position of being the accuser (in effect) and the investigator and determiner (in fact). As a statutory investigator, the Commissioner was responsible for exercising all of these functions, but in a manner not giving rise to a reasonable apprehension of bias. Pursuant to the referral, the Commissioner provided a report to Racing Victoria containing adverse findings against Mr Moodie.
Very soon after the Board of Racing Victoria acted upon the report in the manner more fully discussed in this judgment, the Commissioner issued a media release seeking public vindication of the investigation and findings, which, up to then, were being treated as confidential. This was a very serious step to take. It was not just indiscreet, imprudent or unwise. Unintentionally, it undermined the necessary appearance of impartiality of the investigation and findings that the Commissioner had conducted and made.
Imputed with knowledge of all of the facts and circumstances, including the investigative and ongoing nature of the Commissioner’s statutory functions, I am persuaded that a fair-minded lay observer might maintain a reasonable apprehension that publishing the release, disclosing the adverse findings made against Mr Moodie and providing details of the scope of the investigation suggests that the Commissioner might not have conducted the investigation and made the findings fairly and impartially. A fair-minded lay observer might reasonably apprehend that the Commissioner’s conduct in issuing the release might have been due to him identifying himself too personally with the interests of the accuser in conducting the investigation and making the findings. A fair-minded lay observer might reasonably apprehend that, in these facts and circumstances, a statutory investigator who would seek public vindication of an investigation and findings of improper conduct against an individual might not have fairly and impartially determined whether those findings should be made at all.
The Commissioner stated in the release, and I have accepted, that his reasons for publishing the findings and details of the investigation were (among others) to protect the integrity of his office. But protecting the integrity of a statutory office cannot be achieved at the expense of observing the lawful obligation to avoid conduct and statements that might give rise to a reasonable apprehension of bias. The natural justice that is due as of right to individuals who might be adversely affected in virtue of their fundamental dignity and humanity cannot be sacrificed as a means of achieving that end.
Mr Moodie’s application for judicial review of the findings of the Commissioner will therefore be upheld. For the vindication of Mr Moodie’s right to protection of his personal reputation, there will be a declaration that the Commissioner breached the rules of natural justice by failing to ensure that a reasonable apprehension of bias did not arise in respect of the findings that he made.
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