SRBP and Tax Practitioners Board
[2015] AATA 292
•24 April 2015 1 May 2015
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2014/5366
General Administrative Division )Re: SRBP
Applicant
And: Tax Practitioners Board
Respondent
DIRECTION
TRIBUNAL: F D O'Loughlin, Senior Member
DATE: 7 May 2015
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.Para 9(l) – insert the word not in the second sentence of the quote between would and be appropriate;
2.After the quoted text in para 9(l) replace current text with:
and by its cover email asked that the request be brought to my attention and to the attention of the Tribunal member responsible for the 6 March 2015 letter to the Respondent, as subsequently explained, in the hope and expectation that this matter would be dealt with by a simple reallocation of responsibilities.
3.Replace the first line of para 20 with:
Omitting citations, her Honour said:
............................................................
Senior Member
SRBP and Tax Practitioners Board (Taxation) [2015] AATA 292 (24 April 2015)
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5366
Re
SRBP
APPLICANT
And
Tax Practitioners Board
RESPONDENT
DECISION
Tribunal F D O'Loughlin, Senior Member
Date
Date of written reasons
24 April 2015
1 May 2015
Place
Melbourne
For the reasons given orally at the hearing of this matter, and to be set out in more detail in writing, the Tribunal refuses the application for its recusal.
.............................................................
Senior Member
RECUSAL - apprehended bias - practising barrister and part time Tribunal member constituted as the Tribunal holding a brief to provide advice for an unrelated client of the Applicants solicitors - Tribunal member initiated steps that led to provision of pro bono representation of Applicant - whether sufficient connection to raise perception of lack of independence and impartiality.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 21A
Cases
BQL & Commissioner of Taxation [2013] AATA 423
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
SZTKN v Minister for Immigration and Border Protection [2015] FCA 212
Fingleton v Christian Ivanoff Pty Ltd (1976) 14 S.SA.S.R.530
Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215
Picos v Australian Federal Police [2015] FCA 118
Taylor and Anor v Lawrence and Anor [2003] QB528 (CA) at 548
Australian Securities and Investments Commission v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd [2014] FCAFC 85
Ego Pharmaceuticals Pty Ltd and Minister for health and Ageing [2012] AATA 113
Other material
Australian Bar Association, Proposed Legal Profession Conduct Rules: Barristers, 24 November 2014.
The Victorian Bar Incorporated, Practice Rules: Rules of Conduct and Compulsory Continuing Professional Development Rules, Effective 22 September 2009.
Róisín Annesley Q.C., Good Conduct Guide, Professional Standards for Victorian Barristers
REASONS FOR DECISION
1 May 2015
In the substantive review application, the Applicant seeks the Tribunal’s review of the Respondent’s decision to cancel her Tax Agent registration.
By the Respondent’s solicitors’ letter of 16 April 2015 to the Tribunal, the Respondent asked that the substantive review application be allocated to another Tribunal member because I have been briefed by the Applicant’s solicitors to advise in relation to an unrelated topic affecting an unrelated client of the Applicant’s solicitors, and continue to hold that brief, which, in the Respondent’s view, is a circumstance that is sufficient to affect the perceived independence of the Tribunal adversely. The Respondent’s solicitors asked that the request be brought to my attention, and the attention of another Tribunal member who was not constituted as the Tribunal in this matter.
The 16 April 2015 letter from the Respondent’s solicitors must be treated as a request that I recuse myself. Even if it was not intended as such, a reallocation request for apprehended bias needs to be so treated.[1]
[1]In the reasons that follow I refer to the reallocation or recusal request as the recusal request.
In the 24 April 2015 hearing, convened to consider the recusal request, the Respondent advanced its request as one pursuant to s 21A of the Act.[2] At that hearing, the Respondent added a further circumstance that, when considered with the brief from the Applicant’s solicitors, it contends also affects perceived independence adversely. The additional circumstance is that I had been involved in steps that ended in the Applicant having legal assistance provided to her on a pro-bono basis by two members of the TBA.[3]
[2]The Administrative Appeals Tribunal Act 1975 (Cth).
[3]The Tax Bar Association, a professional association of barristers whose practices include matters involving taxation laws, within the wider Victorian Bar - itself a professional body.
In these circumstances two things are necessary. First, it is necessary for the Tribunal to address the recusal request by reference to the rules of natural justice which, among other things, require that the Tribunal be, and be seen to be, impartial or unbiased, and second, it is necessary for the s 21A request to be separately considered by or on behalf of the President of the Tribunal. Quite independently of s 21A, a member constituted as a Tribunal pursuant to the Act has a duty to recuse himself or herself if a properly based assertion of apprehended bias is made out.[4]
[4]As was the case, for example, in BQL & Commissioner of Taxation [2013] AATA 423.
The reasons that follow are the reasons why I have declined the recusal request.
Both the recusal request and the s 21A request are made on the footing of apprehended bias. The Respondent expressly accepts that there is no actual bias and that if I continued to be the Tribunal constituted in this matter that I would bring an impartial and unprejudiced mind to bear on the issues. The Respondent also confirmed it had a clear preference for the Applicant to be represented in this matter and has praised the two barristers and the Applicant’s solicitors for providing their assistance.
The facts
The present task requires analysis of what was objectively observable by the party complaining. Matters such as my knowledge, and/or absence thereof, of any steps taken by the Tribunal and correspondence sent from the Tribunal to the Respondent after my dealings with the TBA ended, my motivation for contacting the TBA, and the reasons for the manner in which that contact was made, are not relevant.
The facts can be summarised as follows.
(a)The substantive application has been listed for hearing three times: on 17 December 2014, 4 February 2015 and 4 May 2015. Attempts were made on the first two listing dates to begin a hearing. On each occasion it was apparent very early that a hearing was premature.
(b)On the 4 February 2015 hearing date, proceeding with a hearing would have been difficult for the Applicant, the Respondent and the Tribunal. It would also have been unfair for the Respondent given the late supply of voluminous material on which the Applicant was to rely. The hearing was vacated.
(c)With the support of the Respondent, on 4 February 2015 prescriptive directions were given for further steps to be taken before hearing the substantive application. Redacted to remove names, those directions were as follows:
.....
4.On or before 30 March 2015, the Applicant provide to the Tribunal and a copy to the Respondent.
a. a statement of the evidence she proposes to give including:
i.any rebuttal of contentions and allegations concerning communications with [NAME REDACTED] regarding her refund entitlements from the Australian Taxation Office (ATO) referred to in summaries of evidence proposed to be led by the Respondent that have been filed with the Tribunal;
ii.any rebuttal of contentions and allegations concerning instructions to staff as to how to respond to clients seeking advice regarding refunds by the ATO referred to in summaries of evidence proposed to be led by the Respondent that have been filed with the Tribunal;
iii.to the extent she is able, an explanation of the reasons for delays in forwarding refunds made by the ATO to:
(A)[NAME REDACTED];
(B)[NAME REDACTED];
(C)[NAME REDACTED];
(D)[NAME REDACTED] and
(E)the 72 other clients listed at pages 77 and 78 of the documents filed with the Tribunal by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975;
iv.any rebuttal of contentions and allegations concerning supervision of staff referred to in summaries of evidence proposed to be led by the respondent that have been filed with the Tribunal;
v.any rebuttal of any other contentions and allegations referred to in summaries of evidence proposed to be led by the Respondent that have been filed with the Tribunal; and
vi.any and all explanations of mitigating circumstances which the Applicant considers should be taken into account by the Tribunal;
b. all documents on which the Applicant proposes to rely that have not previously been filed with the Tribunal and a listing of other documents on which she proposes to rely that have already been filed with the Tribunal; and
c. a statement of facts issues and contentions about the appropriate conclusion the Tribunal should reach with reasons as to why it should reach those conclusions.
5.To the extent possible, the statement referred to in 4(a) above is to be cross referenced to documents that support or corroborate the assertions in the statement.
6.On or before 20 April 2015, the Respondent provide to the Tribunal and a copy to the Applicant a further statement of facts issues and contentions.
7.The matter be listed for hearing in the week beginning 4 May 2015.
(d)Also on 4 February 2015, I contacted an office bearer of the TBA (its Secretary) to ascertain whether it had, from among its members, a barrister who might assist the Applicant in this matter on a pro bono basis.
(e)Later on 4 February 2015, I was advised by the Secretary of the TBA (in a communication that was copied to the TBA President) that:
... we have received a positive response to the call out for pro bono assistance. We will be in touch again once we close the expression of interest in the next day or so.
(f)My response to the Secretary and copied to the President on the same day was:
On behalf of the Tribunal, thanks for your efforts and the time within which you have responded.
From this point forward I should not be involved.
Assuming there is a volunteer, could you, or an appropriate person get in touch with [NAME REDACTED] and [NAME REDACTED] at the Tribunal to arrange for the offer of assistance to be made to the applicant. They will get in touch with the Applicant and have her contact the volunteer and provide the current directions and other documents.
(g)Also on 4 February 2015, the two Tribunal staff members whose names are redacted above were asked to carry the matter of potential pro bono assistance further.
(h)No contact was made by the Tribunal with the Respondent concerning the initiative to obtain pro bono assistance until 6 March 2015.
(i)On 6 March 2015, and at the instigation of a Tribunal member not constituted as the Tribunal in this matter, the Acting District Registrar of the Tribunal wrote to the Respondent advising that:
....
It would appear from the file that, on or before 4 February 2015 Senior Member O’Loughlin approached Ms Angela Lee and, perhaps, Ms Jennifer Batrouney QC, asking the Tax Bar Association to ascertain whether any of its members was prepared to offer pro bono assistance to the applicant SRBP. On 4 February 2015 Ms Lee advised Senior Member O’Loughlin by email that a positive response had been received. After thanking her, he asked Ms Lee to give the barrister’s details to me and another Tribunal staff member, [NAME REDACTED], who would pass them to SRBP. Senior Member O’Loughlin also advised that, from that point forward, he should not be involved. He forwarded the emails to [NAME REDACTED] and me for our attention.
On 6 February 2014 [sic] Ms Claire Nicholson advised [NAME REDACTED] and me that she and Mr Andrew Broadfoot had agreed to provide pro bono acceptance. [sic] She asked that they be permitted to review the file before approaching a firm of solicitors to engage on a pro bono basis. Unless the Tribunal had another suggestion, they proposed to approach one or other of Allens, King & Wood, Mallesons and Arnold Bloch Leibler. I did not have any other suggestion.
I wrote to SRBP on 6 February 2015 advising her of the offer of assistance. Contact between her and Ms Nicholson occurred later in the month and Arnold Bloch Leibler gave notice of their acting on 25 February 2015.
(j)The Acting District Registrar’s 6 March 2015 letter indicated that the Tribunal (meaning me) and its staff and other members had not played any part in the selection of the particular persons who have offered pro bono assistance.
(k)On 15 April 2015 I convened a directions hearing whereat I advised the Respondent that:
(i)I was a part time member of the Tribunal;
(ii)I was ordinarily a practising barrister in full time practise as such;
(iii)as part of that practise, I had for some time been briefed by the Applicant’s solicitors as a junior counsel, with a senior counsel, in an independent matter that was ongoing and as part of that brief had instructions from the partner of that firm supervising the present matter; and
(iv)the Respondent should be aware of that fact.
(l)On 16 April 2015 the Respondent’s solicitors wrote to the Tribunal indicating that I should not continue to be constituted as the Tribunal in the following terms:
The Respondent’s view is that in all the circumstances it would be prudent for this application for review to be re-allocated to another Tribunal member for determination. The Respondent respectfully submits that it would be appropriate, at least in the sense of a conflict of interest adversely colouring the perceived impartiality of the Tribunal, for the presiding Tribunal member to be acting on instructions from the Applicant’s solicitors in a continuing proceeding at the same time as adjudicating on a matter in which the solicitors are acting the for Applicant.
and by its cover email asked that the request be brought to my attention and to the attention of the Tribunal member responsible for the 6 March 2015 letter to the Respondent, in the hope and expectation that this matter would be dealt with by a simple reallocation of responsibilities.
(m)A hearing was convened on 24 April 2015 to allow parties to address the recusal request.
(n)At the 24 April 2015 hearing the Respondent’s advocate, Mr Brown, indicated that the request was made pursuant to s 21A of the Act. As noted above, s 21A of the Act is not the only matter that needs to be considered.
(o)After hearing the parties, on 24 April 2015 I decided that I would not recuse myself for the reasons given briefly in the following terms:[5]
…
My ruling in this matter is that I’m not going to recuse myself. I think that the test is that a fair-minded lay observer who is informed and knowledgeable, requires a fair-minded lay observer to be informed of all of the facts and have knowledge of all of the circumstances. I don’t think that such a person ought have a reasonable apprehension of bias. The test requires an understanding of context and particularly the context of a part-time tribunal member as opposed to a full-time judicial officer with tenure.
A part-time tribunal member is appointed for reasons of particular expertise and is assigned to particular divisions of the tribunal because of that expertise. Where a practitioner practices in a field with a particular expertise, the usual course of events is that they exclude other areas of practice from their areas of activity. Once areas of activity are narrowed to fields of particular expertise, the range of professional associations and connections is also narrowed to others that practice in those fields.
It is inevitable that a tribunal member appointed with tax expertise it would be inevitable that there would be some ongoing connections from time to time with firms that specialise in particular areas of the law, such as tax, such as the practice of Arnold Bloch Leibler. Having regard to what Downes J said in Ego Pharmaceuticals & the Minister for Health and Ageing [2012] AATA 113, and particularly at paragraph 36, I am fortified in the view that it is necessary for the fair-minded lay observer to be assumed to be informed and knowledgeable as to those sorts of matters, and I am satisfied that such a person ought not apprehend bias in dealing with the outcome in the present matter.
As to the conjunction of arranging the pro bono assistance, I don’t make the connection the Respondent makes. The fair-minded reasonable observer ought not apprehend bias in circumstances where, after an initial conversation with an office holder of a professional body, there is a communication back to that office holder to the effect that the tribunal member should have no further part in organising the professional assistance for the applicant in this matter. I expect that the fair-minded lay observer informed of that fact would take some comfort in the separation of the Tribunal from the organisation of the legal representation.
For those reasons the Tribunal ruling is that I will not recuse myself in this matter.
…
If written reasons are prepared, they would be a little more expansive than what I’ve just articulated.
[5]Taken from the transcript with minor editing to convey the reasons more accurately.
The Respondent has asked for written reasons.
The law
Mr Brown referred to the decision in Ebner[6] in support of contentions that the applicable principles for judicial officers and systems extend to other decision making bodies such as this Tribunal.[7] He also submitted that the apprehension of bias principle gives life to the proposition that justice needs both to be and to be seen to be done by an independent and impartial tribunal.[8] These propositions are not controversial.
[6]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
[7]Ebner (2000) 205 CLR 337 at [4] Gleeson CJ, McHugh, Gummow and Hayne JJ.
[8]Ebner (2000) 205 CLR 337 at [6] and [7] Gleeson CJ, McHugh, Gummow and Hayne JJ.
Mr Brown relied heavily on the decision in Ebner that the test to be applied in an apprehended bias case 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.[9]
[9]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [33] Gleeson CJ, McHugh, Gummow and Hayne JJ.
Subject to some further considerations addressed below, the Ebner test is not controversial and applies to tribunal processes.[10]
[10]See for example SZTKN v Minister for Immigration and Border Protection [2015] FCA 212 Logan J at [8].
When pressed, Mr Brown correctly accepted that the Ebner test has an overlay that the lay observer is to be assumed to be informed and knowledgeable. The Ebner principle has been followed or applied in many cases with some presently relevant overlays noted below articulated.
Mr Brown referred to the South Australian decision in Fingleton[11] as an illustration of circumstances where a remunerated relationship between a decision maker and a party to proceedings ought cause a recusal. There the Chief Justice observed that a decision maker in the employ of lawyers for one of the parties in a matter ought disqualify him or herself because of the perception that he or she would be biased because he or she would not want to affect his or her employment.
[11]Fingleton v Christian Ivanoff Pty Ltd (1976) 14 S.SA.S.R.530 at 534 and 535 Bray C.J.
Mr Broadfoot and Ms Nicholson appeared for the Applicant to assist the Tribunal and to draw attention to some of the cases which have considered the issues to be decided presently. Expressly not advocating for a position either way.
Mr Broadfoot and Ms Nicholson referred me to the Aussie Airlines[12] decision to the effect that a long standing personal, professional and financial association between a decision maker (in that case, a judge) and counsel representing a party in a matter does not necessarily disqualify the decision maker or require a recusal.[13] They point, in particular, to the passages:
[12]Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215 Merkel J.
[13]Aussie Airlines (1996) 65 FCR 215 at 217C, 218B to D and G, 219A, 222B to G, 224A to B and 230C to G Merkel J.
In my view, as with the cases considering personal, family and financial interests the decision in the cases dealing with professional association between adjudicator and litigant demonstrate that the courts do not take a hypothetical or unrealistic view of an association relied upon in a disqualification application. In particular they appear to accept that the reasonable bystander would expect that members of the judiciary will have had extensive professional associations with clients but that something more than the mere fact of association is required before concluding that the adjudicator might be influenced in his or her resolution of the particular case by reason of the association. Although the test is one of appearance it is an appearance that requires a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case. In the absence of such a link it is difficult to see how the test for disqualification as stated in Livesey can be satisfied.[14]
[14]Aussie Airlines (1996) 65 FCR 215 at 223G to 224B Merkel J.
and
In seeking to approach the matter on the basis of the principles established in the cases I have referred to, the "informed" observer, when examining the association in the present case, can be assumed to do so with the presumed general knowledge that:
(a) when barristers act on a client's behalf they do so in a professional capacity as their client's legal advocate selected to act in the case for that purpose. Any barrister so selected could have been briefed to fulfil the same task for the opposite side;
(b) in accepting a brief to act for a client in a particular commercial case, the barrister does not become part of or identified with the client and has no direct or indirect financial interest in the outcome of the case;
(c) the barrister acts as such as a member of an independent Bar. The barrister is instructed by a solicitor or a firm of solicitors to present the client's case and in doing so is bound by a professional code of ethics ensuring that the barrister's conduct is in accordance with his or her professional standards;
(d) it is common place for barristers who are close associates, or friends and who may even be from the same set of chambers, to fight on opposite sides of a case without compromising their professional duties to act in the interests of their clients;
(e) as judges are usually appointed from the senior ranks of the profession, particularly the Bar, it is likely that they will be well acquainted, and have formed close associations, with senior counsel appearing before them. It is also likely that they will have personal and professional associations with many of the counsel appearing before them.
The hypothetical observer when informed of the close association relied upon in the present case may initially approach the matter by saying:
''I'm not sure about all this - wouldn't it be better if another judge who was not so closely associated with the senior counsel heard the case?"
Although that may be the start of the process of inquiry the issue is whether that observer upon being informed of the kind of matters set out above concludes, not whether it would be better for another judge to hear the matter, but whether the judge sitting to hear the matter might not bring an impartial and unprejudiced mind to the resolution of the two questions for decision.[15]
that throw light on the approach to questions of apprehended bias in cases of connections between decision makers and lawyers acting in the matter.
[15]Aussie Airlines (1996) 65 FCR 215 at 230C to G Merkel J.
Mr Broadfoot and Ms Nicholson also advised that in the United Kingdom, where a similar, but not precisely the same, test is applied to determine whether a decision maker ought recuse him or herself on apprehended bias grounds, a similar approach was taken to connections between decision makers and legal advisers in Taylor.[16]
[16]Taylor and Anor v Lawrence and Anor [2003] QB528 (CA) at 548 [60] to [63], 553 [69], 554/555 [73] Lord Wolf CJ for the Court
As noted above, the Ebner decision has been the subject of some overlays in various contexts. Perry J’s decision in Picos[17] summarises a number of those overlays including that:
[17]Picos v Australian Federal Police [2015] FCA 118 Perry J at [27] and the authorities there cited.
(a)an allegation of apprehended bias must be firmly established;[18]
[18]Picos [2015] FCA 118 at [22] and the authorities there cited.
(b)the decision maker:
(i)is to bring an impartial and unprejudiced mind to the process;[19] and
(ii)has a duty to sit and is not to accede too readily to suggestions of appearance of bias, which might encourage parties to raise such questions for inappropriate purposes;[20] and
(c)the hypothetical lay observer:
(i)can be assumed not to be a lawyer but is not to be taken to be uninformed or uninstructed about the law or ordinary judicial practice;[21]
(ii)can be assumed to have informed him or herself as to the relevant context;[22] and
(iii)is to be taken to be neither complacent nor unduly sensitive or suspicious.[23]
[19]Picos [2015] FCA 118 at [22] and the authorities there cited.
[20]Picos [2015] FCA 118 at [27] and the authorities there cited.
[21]Picos [2015] FCA 118 at [24] and the authorities there cited.
[22]Picos [2015] FCA 118 at [24] and the authorities there cited.
[23]Picos [2015] FCA 118 at [24] and the authorities there cited.
Omitting citations, his Honour said:
22 The test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias, allegedly here prejudgment, is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Michael Wilson& Partners Ltd v. Nicholls … (Wilson) …. Allegations of apprehended bias must be firmly established: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka … (approving R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group ….
24 In this regard, the hypothetical lay observer, while not a lawyer, is not taken to be uninformed or uninstructed about the law or ordinary judicial practice: Johnson v Johnson … (Johnson) … (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Rather, such a person may be expected to have taken the trouble to inform themselves of the basic considerations or context relevant to making a fair judgment, and is taken to be neither complacent nor unduly sensitive or suspicious: British American Tobacco Australia Services Ltd v Laurie …; Johnson …
25 Two steps must be addressed in considering an application for disqualification. As Gleeson CJ, McHugh, Gummow and Hayne JJ held in Ebner v Official Trustee in Bankruptcy …:
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 being assessed.
26 Equally, as the joint judgment stated in Wilson …, “[s]o too... the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.” (emphasis added)
27 The importance of ensuring that litigants have their disputes determined by judge who is impartial and appears so to be, is based upon the need for public confidence in the administration of justice: Johnson … . Conversely, it is the duty of the judge to sit where proper grounds for disqualification do not exist. As Mason J emphasized in Re J.R.L.; ex parte C.J.L. …:
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
Ebner was applied to consistent effect in the Walton Constructions decision where White J said (citations omitted):[24]
59 It was common ground at first instance, and on the appeal, that the test for apprehended bias in a liquidator is the same as that which applies to the judiciary and to administrative decision makers. That is the test stated by the majority in Ebner v Official Trustee in Bankruptcy …, namely, 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 is required to decide”. Gleeson CJ, McHugh, Gummow and Hayne JJ went on to say … that the application of this test 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.
60 The “double might” test stated in Ebner has been regarded as relatively undemanding and, on occasion, has been described as “Spartan”. Nevertheless, the degree of independence and impartiality to be expected of a decision maker may differ from one statutory context to another. As Spigelman CJ observed in McGovern v Ku-ring-gai Council …, “the judicial paradigm is not universally applicable”. Similarly, this Court observed in Cabcharge Australia Ltd v Australian Competition and Consumer Commission … that, “although the test for apprehended bias is ordinarily the same wherever it arises, the precise language used in applying the test has frequently varied depending on the context in which it falls to be applied”. This means, in the present case, that particular regard must be had to the position of liquidators in a voluntary winding up. [Citations omitted]
[24]Australian Securities and Investments Commission v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd [2014] FCAFC 85 White J with whom Jessup and Robertson JJ agreed
In a context closer to the present application, Ebner was again applied to consistent effect concerning the statutory context of this Tribunal in Ego Pharmaceuticals.[25] Downes J recognised the Tribunal’s make-up of part time members who have other professional and business pursuits that are assumed to afford Tribunal members with expertise to enable them to discharge Tribunal responsibilities according to law. His Honour observed that it can be expected that members of the Tribunal would have other dealings with persons and matters at least topically related to their work in the Tribunal. Citations omitted, his Honour said:
[25]Ego Pharmaceuticals Pty Ltd and Minister for health and Ageing [2012] AATA 113, Downes J.
There is no doubt that administrative tribunals are subject to the rules of natural justice or procedural fairness. These rules include the bias rule and one of its manifestations, apprehended bias. Nor is there any doubt about the content of the apprehended bias rule or how it should be applied. It is to be observed, however, that the rule was largely developed in a curial setting as the reference to “the judge” in Ebner/Wilson confirms. The application of the rule will, of course, vary according to the statutory context which calls for its consideration and the particular circumstances of each case (see, e.g., British American Tobacco Australia Services Ltd v Laurie .., McGovern v Ku-ring-Gai Council … Thus application of the rule in tribunal proceedings will require adaption from its traditional application in a court proceeding (Ebner at [4]).
Before turning to the application of the rule in the present case it is appropriate to look at the statutory context:
(a) The Administrative Appeals Tribunal is not a court. It does not exercise judicial power. It is part of the administration of the Commonwealth. It does not resolve issues in disputes put forward by parties for determination; it makes administrative decisions. These decisions, such as the ultimate decision in the present case, can affect the whole or a large part of the population.
(b) In almost every matter reviewed in the Tribunal the Tribunal is substituted for, or “stands in the shoes of” (Minister for Immigration and Ethnic Affairs v Pochi ...; …, Liedig v Commissioner of Taxation …, Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation …, Shi v Migration Agents Registration Authority … a Commonwealth minister, officer, department or agency to make a decision for that minister, officer, department or agency (s 43(6)).
(c) The Parliament has provided for the Tribunal to have diverse membership. In addition to being a lawyer a person is qualified for membership who: (s 7(2))
...
(b) has had experience, for not less than 5 years, at a high level in industry, commerce, public administration, industrial relations, the practice of a profession or the service of a government or of an authority of a government; or
(c) has obtained a degree of a university, or an educational qualification of a similar standing, after studies in the field of law, economics or public administration or some other field considered by the Governor-General to have substantial relevance to the duties of such a member; or
(d) has, in the opinion of the Governor-General, special knowledge or skill in relation to any class of matters in respect of which decisions may be made in the exercise of powers conferred by an enactment, being decisions in respect of which applications may be made to the Tribunal for review.
(d) The Parliament has provided that a member may “be appointed either as a full-time or as a part-time member” (s 6(4)). Although a full-time member requires the consent of the Attorney-General to “engage in paid employment outside the duties of his or her office” this limitation does not apply to part-time members (s 11). The Parliament must be taken to have known that part-time members would undertake other employment for the very reason that their tribunal employment is part-time. It must also be taken to have known that the outside employment of a member appointed because of particular expertise would almost certainly be in a field which also made use of that expertise.
.....
Neither of the parties referred to or drew my attention to the Picos, Walton Constructions or Ego Pharmaceuticals decisions in the 24 April 2015 hearing. At that hearing, the Ego Pharmaceuticals decision was made available to both the Applicant’s and Respondent’s representatives with their attention directed to paragraphs [10] and [36] of Downes J’s reasons. They were given the opportunity to read the decision and make submissions as they saw fit. The Picos and Walton Constructions decisions were not brought to the parties’ attention; however the principles in those decisions referred to above are consistent with the views expressed by Downes J in the Ego Pharmaceuticals decision to which their attention was directed.
The applicable principles for the present matter
The principles to be applied in the present matter are that I am to assume a fair minded, lay observer:
(a)who is informed and knowledgeable concerning the context of a Tribunal that is comprised of part time members to a very significant degree and reviews of administrators’ decisions by that Tribunal;
(b)who is neither complacent nor unduly sensitive or suspicious,
and ask whether that informed and knowledgeable fair minded lay observer would, in the circumstances of a part time Tribunal member who:
(c)contacted an office holder of a professional body as the first step of a number steps taken by others that ended in the Applicant having pro bona legal assistance provided to her;
(d)was not involved in the selection of legal advisers who would provide that assistance;
(e)conducts an independent professional practice as a barrister and member of an independent bar; and
(f)as part of that professional practice, and subject to the professional duties associated with that practice, holds a brief as a junior counsel with a senior counsel to advise in an unrelated matter on behalf of an unrelated client from the firm that has agreed to provide the Applicant pro bono assistance,
reasonably apprehend that that Tribunal member might not bring an impartial mind to the resolution of the question for decision.
Applying the law to the present facts - the parties submissions
Mr Brown correctly identified that the Ebner decision requires a two-step process: first, identification of an event or circumstance that is said might lead to the potential apprehension that the Tribunal might decide the substantive application other than on its merits; and second, identification of a logical connection between the event or circumstance and the issues for determination such that, in Mr Brown’s submission, a reasonable apprehension might be formed based on that event that an impartial and unprejudiced mind may not be brought to the resolution of the question.
Applying this two-step process, Mr Brown said the events or circumstances are that:
(a)I have been, and continue to be, retained in a matter for the Applicant's solicitor being instructed by the supervising partner of the present matter; and
(b)as a subsidiary event, and in isolation not a problematic event, the role that I took in having this matter referred for potential pro bono representation without prior indication to the Respondent, a referral which the Respondent concedes would have been welcomed had it been informed about it.
Mr Brown explained that in the Respondent’s submission my personal involvement having this matter referred for potential pro bono representation:
... went beyond what the tribunal adjudicating on this matter should have been involved in. By analogy with what used to be order 80, what is now rule 4.12 in the Federal Court, a referral for pro bono support, (a) should have been advised to the respondents, and (b) should have been undertaken solely by the registry staff with no involvement of the tribunal member.
and acknowledged that:
....this is new territory for the tribunal, that there has not to our knowledge previously been a system, a procedure for the referral off for pro bono assistance in this place, and in those circumstances I think it is understandable that you sought to take the initiative to try and assist in securing some pro bono assistance for the applicant. ...
and noted that the referral for pro bono assistance was:
... problematic only because we have now been advised that you are currently briefed in a continuing matter on behalf of the applicant's solicitors. ...
The logical connections Mr Brown contends ought be made are:
(a)in relation to the brief I hold from Arnold Bloch Leibler:
… there will be a possibility, a real possibility that that would lead to two things. First of all you having a degree of engagement in the course of these proceedings with the applicant's solicitors that would represent a potential conflict in this matter, and secondly that you would feel an obligation arising from your retention by that firm in your approach to determining the issues in this matter.
which was equivalent to or ought be treated in the same manner as the circumstances in Fingleton; and
(b)in relation to the involvement in the steps that led to the Applicant being provided with pro bono legal assistance:
… the degree of involvement of the tribunal [meaning my involvement] in securing pro bono support in this case went beyond what it should have done, and that in turn adds a layer of potential apprehension that might be taken by a fair minded lay observer. In going beyond what we would contend was appropriate you were invested in the process of securing a pro bono advocacy for the applicant, and that investment in turn might be seen by such a fair minded lay observer as impacting adversely on your impartiality and absence of prejudice in determining the matters in this review.
As noted above, Mr Broadfoot and Ms Nicholson did not advocate for any particular outcome. In this regard they observed that I need to identify my obligations and that I have an obligation to hear the case as much as [I have] ... an obligation not to hear the case if ... the requirements in Ebner are satisfied.
Mr Broadfoot and Ms Nicholson submitted that the authorities were to the effect that financial and or professional associations do not automatically call for disqualification or recusal. Further, they submitted that it ought be accepted that a Tribunal member appointed from the legal profession would have ongoing professional associations with other practitioners whose practices covered similar fields of law, and, having regard to the role played by a barrister in the legal profession, those associations ought not give rise to an apprehended bias problem. While, when made, uninformed by the Ego Pharmaceuticals decision, these submissions bore a striking parallel to what Downes J had to say.
As to my involvement in the process by which the Applicant has been provided pro bono legal assistance, Mr Broadfoot and Ms Nicholson submit that doing something directly should be seen in the same light as asking someone else to do that thing for you.
The substance of what Mr Broadfoot and Ms Nicholson offered to the Tribunal, if accepted, would, having regard to what was said in Picos and Ego Pharmaceuticals compel a conclusion that I must decline to recuse myself.
Consideration of the Respondent’s submissions
Being briefed by the Applicant’s solicitors in an unrelated contextual setting and for an unrelated client, it is difficult to perceive how there could be a conflict of interest arise in continuing to be the Tribunal constituted in the present matter. The legal and factual matters arising have no overlap and the parties to the present matter and the client for whom the Applicant’s solicitors have briefed me are not related or otherwise connected.
The fact that I might be paid in respect of the advice given in respect of the client for whom the Applicant’s solicitors have briefed me is not to the point. As noted by Mr Broadfoot and Ms Nicholson, not all financial associations are sufficient to warrant a legitimate apprehension of bias.
Equating the circumstances of the employment relationships referred to in Fingleton with the relationship of a practising barrister to an instructing solicitor shows a misunderstanding of some fundamental features of the latter relationship, for example the central focus of the client, and protection of the clients’ interests ahead of solicitors’ interests, in the tripartite the relationship between barristers, solicitors and their clients, and the requirement to practise independently and observe the cab rank principle. Rule 114 of the proposed Australian Bar Rules[26] and rule 73 of the Victorian Bar Rules,[27] which oblige a barrister to inform his or her client of potential claims against his or her instructing solicitors, are examples of the priority afforded to the client’s interests over instructing solicitors’ interests. Barristers’ obligations to practise independently of others and abide by the cab rank rule complement the requirement that a barrister must advance and protect a client’s interests no matter how unpopular the client or the client’s activities might be.[28] These features of professional practise lead to barristers with close personal and/or professional associations often acting on opposite sides of a dispute as was observed by Merkel J in Aussie Airlines[29] as extracted above. These are examples of incidents of a barrister’s relationship with instructing solicitors that set that relationship apart from employment relationships.
[26]Australian Bar Association, Proposed Legal Profession Conduct Rules: Barristers, 24 November 2014.
[27]The Victorian Bar Incorporated, Practice Rules: Rules of Conduct and Compulsory Continuing Professional Development Rules, Effective 22 September 2009.
[28]Róisín Annesley Q.C., Good Conduct Guide, Professional Standards for Victorian Barristers, [4.71].
[29]Aussie Airlines (1996) 65 FCR 215 at 230C to G Merkel J.
Contrary to the submissions made on behalf of the Respondent, a barrister is not retained to act on behalf of her or his instructing solicitor; rather it is the client on whose behalf the barrister acts.
The informed and knowledgeable hypothetical observer is assumed to know these matters.
Further, the statutory context of the Tribunal and its composition of part time members is assumed to be appreciated by the hypothetical observer. The Government has appointed part time members to sit in review of decisions of its administrators. Such members can be expected to have associations with others in their fields of endeavour and the informed and knowledgeable hypothetical observer is assumed to know this as well.
In these circumstances, the informed and knowledgeable hypothetical observer, who is neither complacent nor unduly sensitive or suspicious, ought not apprehend that I might not bring an impartial mind to the resolution of the question ... [I am] ... required to decide[30] and as such, the association I have with the Applicant’s solicitors ought not disqualify me from continuing as the Tribunal constituted for the present matter.
[30]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [33] Gleeson CJ, McHugh, Gummow and Hayne JJ.
It might be observed that the vast majority of Tribunal members do not hold tenured office. All members are paid for their services by the Australian Government and, nevertheless, sit in review of decisions made by another part of the Australian Government. It is obvious that such limited tenured office holdings and remuneration arrangements are not sufficient for applicants in matters before the Tribunal to establish apprehended bias that would warrant a recusal.
The Respondent’s submission that the degree of my involvement in the steps that ended in the Applicant securing legal assistance went too far, and that I should have had a Tribunal officer undertake that task, is, in my view, misconceived.
I agree with Mr Broadfoot’s and Ms Nicholson’s submissions concerning my involvement in the process by which the Applicant has been provided pro bono legal assistance. Further, in my view, having others do things for you might be seen as less than transparent behaviour which itself is problematic. If it would not have been a problem for me to behave less than transparently and ask someone from the Tribunal staff to make the first contact with the TBA, then it ought not be problematic to be more transparent and make that contact personally. Contrary to the submission of the Respondent, in my view it would be inappropriate and inadvisable to mask what had been initiated.
The parallel with the Court process does not assist. The Federal Court rules have a systematic process that sets out procedures for arranging for the provision of, and once arranged being released from obligations to provide, legal assistance on a pro-bono basis. The steps involved start with involvement of the Court.
The Tribunal does not have such a procedure.
In the present case, the steps involved began with my involvement (i.e. the involvement of the Tribunal) and quickly passed to the administrative staff of the Tribunal and the Respondent was informed of that fact, albeit later than it may have desired.
Cumulatively the two matters complained of together do not take the matter any further.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member F D O'Loughlin .............................................................
Associate
Dated 1 May 2015
Date of hearing 24 April 2015 Counsel for the Applicant Mr A Broadfoot and Ms C Nicholson Solicitors for the Applicant Arnold Bloch Leibler Advocate for the Respondent Mr D Brown Solicitors for the Respondent Australian Government Solicitor
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