New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act

[2011] NSWLEC 233

Land and Environment Court

New South Wales

Medium Neutral Citation:	New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2011] NSWLEC 233
Hearing dates:	1 December 2011
Decision date:	01 December 2011
Jurisdiction:	Class 3
Before:	Pain J
Decision:	The Court orders that the Respondent's application for disqualification of the Acting Commissioner is dismissed.
Catchwords:	BIAS - whether apprehension of bias established in relation to an acting commissioner - apprehension of bias not made out
Legislation Cited:	Land and Environment Court Act 1979 s 37(3)
Cases Cited:	Alexander v Yass Valley Council [2011] NSWLEC 148 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2011] NSWLEC 147
Category:	Procedural and other rulings
Parties:	New South Wales Aboriginal Land Council (Applicant) Minister Administering the Crown Lands Act (Respondent)
Representation:	Dr S Pritchard (Applicant) Mr H El-Hage (Respondent) Chalk & Fitzgerald (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	30052 of 2011

EX TEMPORE Judgment

1. This judgment concerns an oral application for the disqualification of Acting Commissioner McAvoy on the ground of apprehension of bias made by the Minister's counsel at the outset of the hearing.

1. The basis for the application is that the Acting Commissioner is involved as counsel in Federal Court native title proceedings on behalf of an applicant. The Minister's counsel here is acting for the relevant Minister of State in opposition in those proceedings. The proceedings are actively on foot and it is very likely that in the period during which judgment in this matter is reserved counsel will be engaged with each other on opposing sides as part of the usual court proceedings expected in such matters.

1. The relevant test was stated by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (the Ebner test) and was considered recently in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2011] NSWLEC 147 at [5] and [6] as follows:

5 The test to be applied when determining an application of the present kind is that stated by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ (at [6] references omitted):

6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if 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 is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

6 What must be considered in the application of this principle to a given set of facts or circumstances is as follows ( Ebner at [8] references omitted):

8 The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

1. The test was also usefully outlined by the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [37] - [39]. At [38] the different categories in which such circumstances may arise are identified with association ( where a decision-maker has a relationship, experience or contact with a person involved in the proceedings) being most relevant to this matter.

1. The Ebner test applies to all administrative decision-makers, including in relation to the role of acting commissioners in Aboriginal land rights cases of assisting and advising the Court in its adjudication under s 37(3) of the Land and Environment Court Act 1979 (the Court Act). I consider it is relevant to identify the distinction between the role of an acting commissioner (who shall not adjudicate) and that of a judge under s 37(3).

1. The Ebner test has been described as a low threshold. An important part of its application is the knowledge to be attributed to the fair-minded lay observer. I outlined a number of relevant authorities in Alexander v Yass Valley Council [2011] NSWLEC 148 at [79] - [82] especially [80] as follows:

In McGovern Basten JA considered this issue at [78] - [83] observing that the proposition in Laws (at [87] per Mason CJ and Brennan J) that the knowledge to be attributed of the actual circumstances of the case involves three concepts: the general understanding the fair-minded lay observer is deemed to have, the information ascribed to the observer and that attribution is to decide whether there is a real possibility that he or she would apprehend that the decision-maker may have a closed mind.

1. In this case that fair-minded lay observer would be assumed to know generally about the nature of the adversarial process and the professional and impartial role of barristers engaged on behalf of parties in such processes (here the Federal Court native title proceedings). I consider that person should also be assumed to be informed about the different role of an acting commissioner in this Court as an advisor to the judge hearing a particular matter. There is a clear and important distinction between those two professional roles. In light of the knowledge to be assumed by the fair-minded lay observer in this case I do not consider the apprehension of bias applying the Ebner test of there being a real possibility that he or she might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the proceedings, is made out in relation to Acting Commissioner McAvoy.

Order

1. The Court orders that the Respondent's application for disqualification of the Acting Commissioner is dismissed.