The Applicant and The Regulator

[2021] AATA 3980

The Applicant and The Regulator [2021] AATA 3980 (1 September 2021)

Division:Taxation and Commercial Division

File Number(s):      

Re:The Applicant

APPLICANT

AndThe Regulator

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe
Senior Member D O'Donovan

Date:1 September 2021

Place:Melbourne

The recusal application is refused.

......................................SGD...............................

Deputy President Bernard J McCabe

CATCHWORDS

INTERLOCUTORY APPLICATION: Recusal Application – the ability to bring an impartial mind – fair-minded lay observer – additional evidence provided by the regulator – material should be redacted – submissions disclosed potential sensitive information – inadmissible material not to be considered by the tribunal – recusal application refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth).

Crimes Act 1914 (Cth)

CASES

CNY17 v Minister for Immigration [2019] HCA 50

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC
The Applicant and The Regulator [2019] AATA 4683
Webb v The Queen (1994) 181 CLR 41

REASONS FOR DECISION

Deputy President Bernard J McCabe
Senior Member D O'Donovan

1. The applicant in these proceedings is challenging a decision by an occupational regulator to take administrative action on character and fitness grounds. As it happens, the applicant has spent convictions. Before the convictions were spent, the convictions were discussed in other proceedings before other bodies that addressed the applicant’s suitability to engage in other callings. The regulator in this case accepted it was not permissible to refer to the spent convictions but it did want to refer to the decisions of the other bodies. We dealt with an interlocutory application dealing with the issue which limited the material the respondent could refer to or rely upon at the final hearing.

2. On the first day of the final hearing, the applicant made an application that the Tribunal as constituted recuse itself from further involvement in this matter on the grounds of apprehended bias. We rejected the application and advised that we would publish our reasons for doing so. The applicant renewed his application in his written submissions provided after the hearing concluded.

3. The applicant alleges that, “a fair-minded lay observer might reasonably apprehend that the [Tribunal] might not bring an impartial mind to the resolution of the question the [Tribunal] is required to decide”.[1]

   [1] This is the formulation for a claim of apprehended bias and is derived from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]

4. The category of apprehended bias alleged is ‘knowledge of some prejudicial but in-admissible fact or circumstance’.[2] The facts which the Tribunal knows which are said to meet that test are to be found in certain paragraphs of a submission filed by the respondent. The submission was filed by the respondent in the context of the Tribunal determining the interlocutory issue in relation to the reception of material which refers to the applicant’s spent convictions. In determining that issue, the Tribunal necessarily had regard to the submissions of both parties which referred to the existence of spent convictions – although as explained in the written reasons we gave in connection with that application, we did not review any of the disputed documents ourselves and relied upon the parties’ descriptions of the material therein. The applicant now says that the knowledge of the material that we derived through the interlocutory application leads to an apprehension of bias on the part of the Tribunal.

   [2] Webb v The Queen (1994) 181 CLR 41 at 74

5. The leading case on apprehended bias is the High Court’s decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The Court in that case made clear the question is considered from the view-point of a fair-minded lay observer. In doing so, we must undertake a two-step analysis:

   First, it 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. 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.[3]

   [3] Ebner at [8]

6. The High Court in CNY17 v Minister for Immigration [2019] HCA 50 recently emphasised that conclusions about apprehended bias in the context of an allegation that the decision maker has knowledge of some prejudicial but in-admissible fact or circumstance turn on both the specific circumstances of the case[4] and are determined on the basis of the fair minded lay observer having knowledge of the key elements of the statutory scheme concerned. In those circumstances, it is necessary to elaborate on both before resolving the question of whether the applicant has made out his claim of apprehended bias.

   [4] At [101]

7. It is also important to note that the Full Federal Court has recently confirmed that the Tribunal under its constitutive legislation is an independent quasi-judicial body of skill and stature.[5] A fair-minded lay observer would be taken to appreciate such matters. Any allegation that the Tribunal would be subconsciously influenced by material it was obliged to put out of its mind needs to be assessed in that context.

   [5] MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [3]

   CONTEXT

8. The context in this matter is particularly important. This matter is being heard for a second time by the Tribunal (differently constituted) after the applicant successfully appealed an earlier decision. The court’s judgment on appeal discussed the applicant’s significant criminal record and inevitably referred to the spent convictions that were referred to by this Tribunal in the course of its earlier decision. The court found the Tribunal could not have regard to those convictions in reviewing a banning order given their age and the requirements of Part VIIC, Division 3 of the Crimes Act.

9. As a consequence of the court’s decision and the subsequent remittal, the Tribunal is unavoidably aware of the applicant’s previous spent convictions but we are also aware we must not have regard to the convictions or take them into account in any way in coming to our decision on review. Interestingly, the applicant does not make his application on the basis of knowledge derived from the court’s decision; indeed he seemed to disavow it.[6]

   [6] See for example Transcript line 10 p 22

10. The foundation of the applicant’s claim for apprehended bias is based on additional information that came to the attention of the Tribunal in the following way.

11. As noted above, during the course of the preparation of the matter for hearing a dispute arose about what material could be appropriately included in the T Documents and documents supplied to the Tribunal pursuant to section 38AA of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant contended that any material referring to his spent convictions should be redacted. The respondent contended that material which consisted of other Tribunals forming adverse views about the applicant’s failure to disclose his convictions at a point in time when they were not spent, should be reviewed and considered by the Tribunal. In order to deal with this question, we received submissions from both parties. Before doing so, we sought the parties’ views on whether it was appropriate for those matters to be determined by the Tribunal as presently constituted. Although the applicant’s position was to some degree ambiguous, his basic submission on that question was:

    The Applicant would as a matter of law submit that the presently constituted Tribunal cannot and should not abdicate the responsibility of determining matters…[7]

    [7] Applicant’s submission filed 27 September 2019 at [10] 

12. Given the applicant’s attitude, the Tribunal as presently constituted proceeded to determine the interlocutory question.

13. Detailed submissions on the issue were filed. What these submissions disclosed to the Tribunal can be summarised in the following terms:

    (a)The applicant failed to disclose his (now) spent convictions to an occupational regulator in the context of his application for admission to that occupation [Paragraph [23] of the submissions dated 4 October 2019];

    (b)A Supreme Court judgment to which the applicant was a party refers to the applicant’s spent convictions and reaches adverse conclusions about how the applicant gave evidence, his truthfulness and his character [Paragraphs [25] – [28] of the submissions]

    (c)In 2008 the applicant applied for admission to another regulated occupation. The application was approved in 2010. The occupational regulator subsequently terminated his registration on the basis he was not a fit and proper person. These conclusions were based on three complaints. The regulator also found the applicant had failed to disclose relevant aspects of his past conduct including his spent convictions [paragraphs [35]-[40] of the submissions]

    (d)The Tribunal examined a range of matters including the applicant’s spent convictions and the subsequent improper non-disclosure of those convictions in the course of a decision. The Tribunal relied on these non-disclosures in reaching its decision that the applicant was not a fit and proper person [paragraph [51] of the submissions]

    (e)The applicant was charged with a number of counts of fraud, counts which were discharged at the committal stage [paragraph [66] of the submissions];

    (f)The applicant was charged with something in or around the time of earlier proceedings but the charges were dismissed [paragraph [71] of the submissions.

14. Following the receipt of these submissions (and submissions from the applicant) the Tribunal made its interlocutory decision about the scope of Division 3 of Pt VIIC of the Crimes Act: see The Applicant and The Regulator [2019] AATA 4683. The Tribunal concluded that the effect of the earlier appeal and the terms of Division 3 of Part VIIC was to place significant restrictions on what the Tribunal was permitted to take into account in the current proceedings. The relevant parts of the reasons for decision are:

    10. The respondent says the provisions do not prevent it from communicating the documents in question to the Tribunal. In making that submission, the respondent is walking a fine line, and it is inviting the Tribunal to join it on the journey. We do not think that course can be maintained in light of the recent decision of the High Court in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16. In that case, Bell, Gageler, Gordon and Edelman JJ observed in a joint judgment (at [37]):

    37. Division 3 of Pt VIIC has the relevant effect that, subject to Div 6 of Pt VIIC and despite any other Commonwealth law, a person whose conviction is spent is not required to disclose the fact that the person has been charged with or convicted of the offence to any Commonwealth authority, and a Commonwealth authority which knows or could reasonably be expected to know that the person is not required to make that disclosure is prohibited from taking account of the fact that the person was charged with or convicted of the offence. A Commonwealth authority, for the purpose of Pt VIIC, includes "a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth law", and on that basis includes both ASIC and the AAT. [Emphasis added]

    11. That reasoning has profound implications given the breadth of the relevant provisions in the Crimes Act. The provisions do not simply exempt the applicant from an obligation to disclose matters that would otherwise be disclosable pursuant to a state or federal law. The scope is much broader than that. Section 85ZW(a) authorises an individual to actively deny that he or she has ever been charged or convicted in relation to the offence in question. It follows an individual is not just permitted to redact references to their past. They are entitled to rewrite history and replace it with a fiction that they are entitled to actively promote, and which others may not dispute. That right is intended to “...give people a chance to live down a minor conviction”.[1]

    12. If an applicant is permitted to rewrite history so that it excludes details of his past, there is a difficulty in encouraging the Tribunal to have regard to events directly precipitated by facts the applicant is now entitled to deny. In proceedings before this Tribunal the applicant is entitled to deny under oath that he was ever convicted of the offences. In those circumstances, the respondent cannot be entitled to lead evidence or cross examine the applicant in ways that call into question or deny the fiction he is entitled to maintain. The legislature has made it clear that fiction must be accepted for the purposes of subsequent decision making.

    13. Paragraph (b), which prohibits disclosure of the conviction by the regulator, needs to be read in that context when considering the extent of the constraint imposed.

    14. Obligations imposed by other Commonwealth laws yield to the requirements of section 85ZW. Consequently, compliance with obligations imposed by section 37 of the AAT Act must be done consistently with the restrictions imposed by section 85ZW.

    15. The inclusion of documents which refer to the convictions which are now spent in the T-Documents will involve a breach of the requirements of section 85ZW. The respondent denies that including the documents involves any ‘disclosure’ to the Tribunal because the information is already publicly available (as a consequence of references in the various documents which they wish to include in the T-Documents) and so does not involve the ‘action of making new or secret information known’. This proposition cannot be accepted. The fact of the applicant’s convictions is a matter of public record. In that sense the information is not new to the world. But it is new to each additional person or body who does not know it. The act of telling someone about the conviction must amount to a disclosure otherwise the scheme will be entirely ineffective in preventing the dissemination of information about spent convictions. In our view, revealing information about the spent convictions to the Tribunal by including T-Documents which refer to them does amount to disclosure contrary to section 85ZW.

    16. Further, as soon as the regulator brings to the Tribunal’s attention a sequence of events which can only be intelligibly understood by accepting that convictions which are now spent were entered against the applicant is just as much a disclosure, and is as hostile to the applicant’s right to deny the existence of those convictions, as the revealing of the details of the convictions themselves.[8]

    [8] The applicant and the regulator [2019] AATA 4683 (4 November 2019)

15. The Tribunal made directions in the following terms:

    The Tribunal is not entitled to have regard to documents that describe events precipitated by the applicant’s convictions which he is now permitted to actively deny. The Tribunal cannot have regard to the documents if, following a redaction process, non-disclosable matters may still be inferred from those documents.

    THE APPLICANT’S ARGUMENT

16. The applicant now submits the respondent’s submissions disclosed information which the Tribunal is not permitted to take it into account. It follows, we are told, the Tribunal is in possession of prejudicial and inadmissible information. The applicant says a reasonable fair-minded observer might reasonably apprehend that the Tribunal as presently constituted might not bring an impartial mind to the resolution of the question it is required to decide.

17. To address this submission it is necessary first to consider whether the information disclosed in the cited paragraphs of the submission does fall within the category of prejudicial and inadmissible information. We must then consider whether the Tribunal’s possession of that information might cause the prohibited apprehension in the mind of the fair minded observer.

18. The matters disclosed in paragraphs [66] and [71] of ASIC’s submissions can be dealt with quickly. The criminal charges referred to in those paragraphs are not spent convictions because they are not convictions at all. Accordingly, there is no violation of the Crimes Act in the fact of them being disclosed to the Tribunal. The Tribunal would be entitled to admit evidence about them if the respondent sought to do so although it is unlikely any weight would be given to such evidence if only the bare fact of charges was disclosed. The information therefore is not information to which the Tribunal cannot have regard.

19. In relation to paragraph [23], that paragraph reveals the fact that the applicant did not disclose his spent convictions in the context of his application for admission to practice in 2001. That is a matter which the Tribunal considers the applicant is protected from disclosing by the spent convictions scheme and is a fact about which admissible evidence could not be given.

20. In relation to paragraphs [25] to [28] the only matter which is disclosed in those paragraphs which is covered by the spent convictions scheme, is the fact that the applicant has spent convictions. That is a matter which the Tribunal is already aware of as a consequence of the earlier court decision and which the Tribunal knows it must not have regard to.

21. In relation to paragraphs [35] to [40], the submissions disclose that the applicant failed to disclose relevant aspects of his past conduct including his spent convictions to an occupational regulator. The fact of the spent convictions and the fact that he failed to disclose them to the regulator are both matters which should not be disclosed in or taken account of in these proceedings and are not facts on which evidence should be received.

22. In relation to paragraph [51], the submissions disclose that the occupational regulator examined a range of matters including the applicant’s spent convictions and the subsequent non-disclosure of them. Again, these are both matters which should not be disclosed or taken into account in these proceedings and are not facts on which evidence should be received.

23. Accordingly, we accept that the Tribunal is in possession of information which is prejudicial to the applicant and which is inadmissible. A genuine question arises as to whether the Tribunal as presently constituted passes the reasonable fair-minded observer test. As the result in CNY17 emphasises, even professional decision-making bodies like the Tribunal need to be careful before proceeding to determine a matter when they are in possession of prejudicial and inadmissible information.

24. However, the High Court has also made clear that context is important and it will not be in every context that merely being seized of such information will result in a successful application requiring recusal for bias.

25. In the present case there are a number of contextual matters which in our assessment have the consequence that a fair-minded lay observer would not reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question the Tribunal is required to decide. First, we were already inevitably aware of the most prejudicial piece of information about the applicant revealed in the submissions (i.e., he has his spent convictions). We knew this as a consequence of the court decision remitting the matter to the Tribunal. The applicant accepts the possession of that knowledge does not lead to the Tribunal having to be re-constituted. Accordingly, it has been clear all along that the Tribunal would be required to engage in a process of putting out of its mind inadmissible information.

1. Second, the statutory context being considered in CNY17 caused specific difficulties. The statute specifically required the decision maker to consider the irrelevant material before it. Consequently, the risk of influence was very grave and easily perceived.[9] In the present case the Tribunal is the subject of an express statutory prohibition on taking account of the fact that the person was charged with, or convicted of, the offence.[10] While Tribunal members are not judicial officers, we occupy an analogous position to judges whose ‘training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial’.[11] We are confident a reasonable fair minded observer would expect that a professional decision-making body like the Tribunal will comply with the legal requirements to which it is subject and of which it is acutely conscious. The Full Federal Court’s comments in MBJY are supportive in that regard.

   [9] See [92]

   [10] Section 85ZW(b)(ii) Crimes Act

   [11] See Edelman J in CNY17 at 136

2. In these circumstances we are satisfied that provided we duly note (which we now do) that none of the inadmissible prejudicial material included in the submissions will be considered or accorded any weight (a matter we determined in our minds when the decision The Applicant and the Regulator was made), then in the present circumstances the reasonable fair minded observer would not reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question the Tribunal is required to decide as a consequence of the disclosures in the submissions.

   CONCLUSION

3. The application for recusal is refused.

I certify that the preceding 28 (twenty eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe and Senior Member D O'Donovan

..........................................SGD..............................

Associate

Dated:   1 September 2021

Date(s) of hearing:	17 February 2021 - 19 February 2021; 16 April 2021; 30 April 2021; 27 April 2021 - 29 April 2021.
Date final submissions received:	12 October 2020
Applicant:	In person
Counsel for the Respondent:	Ms F Bentley
Solicitors for the Respondent:	Self-Represented