VENESS & MEDICAL BOARD OF AUSTRALIA (Occupational Discipline) - [2011] ACAT 55

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

VENESS & MEDICAL BOARD OF AUSTRALIA (Occupational Discipline) [2011] ACAT 55

OD 13 of 2010
Catchwords: Application for disqualification of member – allegation of apprehended bias— immediate suspension of medical practitioner from practice by Medical Board – tribunal granting a stay order – evidence heard but no decision made – further stay order pending decision— dissenting opinion to vacate stay— claim of apprehended bias based on reasons for dissenting decision— balancing applicant detriment and public health and safety — application of human right to life— reducing potential for misapprehension of bias – misapprehension of bias not made out – application dismissed

List of
Legislation: ACT Civil & Administration Tribunal Act 2008 (ACT)

ss 6, 7, 23, 26, 53, 53(1), 53(1)(b), 53(2), (3), 53(3)(a), 53(3)(b) and 53(4)
Health Practitioner Regulation National Law (ACT)
s 156
Human Rights Act 2004 (ACT) ss 9, 10 and 30

List of Cases: Briginshaw v Briginshaw (1938) 60 CLR 336
In the Matter of an Application for Bail by Isa Islam
[2010] ACTSR 147
Johnson v Johnson (2000) 174 ALR 655
John Morgan and Construction Occupations Registrar (Occupational Discipline)
2011 ACAT 18

Laws v Australian Broadcasting Tribunal
(1970) 170 CLR 70

L.C.B. v. the United Kingdom
, ECJ Reports 1998-III, p. 1403

McPherson v Civil Aviation Authority
(1991) 22 ALD 754

Medical Practitioner "V1" & Medical Board of Australia [2011] ACAT 42
Osman v. the United Kingdom
(ECJ Reports 1998-VII)

R v Fearnside (2009) 165 ACTR 22; 228 FLR 77
R v Momcilovic (2010) 265 ALR 751
Re Anderson and Civil Aviation Safety Authority
(2008) 101 ALD 360

Re Aquatic Airways Pty Ltd and Civil Aviation Authority
(1989) 22 ALD 766

Re Commins and Civil Aviation Safety Authority

(2004) 86 ALD 637; BC200410907

Re Edwards and Civil Aviation Safety Authority
(2003) 74 ALD 572

Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority
(1993) 31 ALD 380

Re iNova Pharmaceuticals (Australia) Pty Ltd and Secretary, Department of Health and Ageing
[2011] AATA 196

Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Pelling and Secretary, Dept of Aviation
(1984) 5 ALD 638

Re Ramsay and Dept of Transport
(1977) 2 ALD 97

Re Refugee Review Tribunal; Ex parte H
(2001) 179 ALR 425

Re XTWK and Australian Securities and Investments Commission
(2007) 98 ALD 131 BC200709209

Re Zarfati and Australian Securities and Investments Commission
[2008] AATA 989; BC200809792

Re Znotins and Registrar of Weapons
(1994) 33 ALD 384

SZMJA v Minister for Immigration and Citizenship
[2008] FCA 1773; BC200810447

Vakauta v Kelly
(1989) 167 CLR 568

Webb v The Queen (1994) 181 CLR 41
William and Anita Powell v. the United Kingdom –
ECJ Application no. 45305/99 4th May 2000

Tribunal: Assoc. Prof. T. Faunce, Member

Date of Orders: 12 August 2011
Date of Reasons for Decision: 12 August 2011

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OD 13 of 2010

BETWEEN:

HUGH VICTOR VENESS
Applicant

AND:

THE MEDICAL BOARD
OF AUSTRALIA
Respondent

TRIBUNAL: Assoc. Prof. T. Faunce, Member

DATE: 12 August 2011

ORDER

1. The application that I disqualify myself from continuing to be available for the tribunal hearing this application is dismissed.

………………………………..

Assoc. Prof. T Faunce
Member

REASONS FOR DECISION

These are the reasons why I have decided to continue to be available to hear this matter (OD10/13) and not to disqualify myself on the grounds of apprehended bias as requested by written application (of 18 July 2011) and reply
(of 9 August 2011) by the lawyers for the medical practitioner in this matter (“the Doctor”) and as opposed by written response of the Medical Board (“the Board”) (of 7 August 2011).

Circumstances by which this matter comes before the Tribunal

The history of this application is that on 6 December 2010, the Board immediately suspended the registration of the Doctor on grounds of professional misconduct under section of section 156 of the Health Practitioner Regulation National Law (ACT) (“the National Law”). This section provides an important public health safety context in which the present application and its relevant statutory framework must be considered. It terms are:
“156 Power to take immediate action
(1) A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if—
(a) the National Board reasonably believes that—
(i) because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety”

Application was made by the Doctor to the Tribunal for a stay order against that decision under section 53 of the ACT Civil and Administrative Tribunal Act 2008 (“the ACAT Act”). A stay order was made by the General President on
17 December 2010 subject to certain conditions (OD10/12). Section 53 of the ACAT Act provides:
53 Interim orders
(1) This section applies if, before the hearing of an application—
(a) a party to the application applies to the tribunal for an order under this section; and
(b) the tribunal is satisfied that, if an order under this section were not made before the hearing of the application, the party applying for the order would be disadvantaged or suffer harm.
(2) The tribunal may make any order (an interim order) it considers appropriate to protect the position of the party that applied for the order.
(3) An interim order remains in force until the earliest of the following
happens:
(a) the end of 12 weeks after the day the order is made;
b) the tribunal orders otherwise;
(c) the tribunal makes an order at the end of the hearing to which the interim order relates.
(4) The tribunal may, on application by a party while an interim order is
in force—
(a) vary the order; or
(b) revoke the order; or
(c) extend the order for a further 14 days.
(5) If the person against whom an interim order is made is not present when the order is made, a registrar must arrange for a copy of the order to be served on the person as soon as practicable after the order is made.
Section 7 of the ACAT Act requires the tribunal to observe natural justice and procedural fairness in making such a determination.

On 20 February 2011, Presidential Member Spender of the Tribunal amended the stay order. On 23 March 2011, Presidential Member Spender granted a further stay order on conditions. A further application to stay the suspension order (OD10/12) was made on 31 May 2011, and the matter OD10/13 was heard on 1 June 2011. The evidence was taken, but the Tribunal of which I am a member has not yet received final submissions from the parties both in writing and orally.
Under 53 (3) (a) of the ACAT Act interim orders such as the stay order cannot have effect for more than a 12 week period. At the conclusion of evidence in OD10/13 (but before final submissions), Counsel for the Doctor sought a further prolongation of the stay of the suspension order given it was likely that the existing order might expire (on 17 June 2011) prior to the Tribunal hearing those final submissions.
Counsel for the Board in the hearing of OD10/13 on 1 June 2011 indicated that the Board opposed any further stay order in OD10/12. Counsel for the Doctor was thus aware that the application for continuation of the stay was contested and that there was a possibility it might either be refused or acceded to. By decision dated 10 June 2011, the presiding member, Mr Chenoweth and Member Greagg determined to continue the stay order. I dissented and published separate reasons. The decisions and reasons are reported at Medical Practitioner "V1" & Medical Board of Australia [2011] ACAT 42.
Member Chenoweth and Member Greagg noted in their reasons in OD10/12 that “in matter OD 13 of 2010 the Tribunal has not made any determination of facts, nor have final submissions been received”. It is important to clarify that I began by separate judgement in that matter expressing my concurrence with that statement as part of what I there termed the “circumstances by which this matter comes before the Tribunal”.
I also agreed with my fellow members that as they put it: “The initial question for the Tribunal under section 53 (1) (b) is whether, on the balance of probabilities, the Doctor would be disadvantaged or suffer harm if the order was not to be made.” I found myself, however, reaching a different conclusion as to whether a further stay order should be granted under section 53 (2) of the ACAT Act.
I expressed my reasons for that differing conclusion in these terms: “In my opinion the reasons of General President Crebbin of the Tribunal in the matter of John Morgan and Construction Occupations Registrar (Occupational Discipline) 2011 ACAT 18 (“Morgan’s case”) about the matters generally to be taken into account in making such as order under s53 of the ACAT Act, must in cases such as this, be read in the context of the specific and overriding obligation to protect public safety inherent in the Health Practitioner Regulation National Law (ACT) (“the National Law”). A finding that the applicant under s53 of the ACAT Act would be disadvantaged or suffer harm does not entitle the Tribunal to downgrade the primary legislative obligation to protect public safety under the National Law”.
By using the word “primary” I was emphasising the centrality of protecting public safety under the National Law. I was also expressing a view that s53 of the ACAT Act must be read in the context of its place in the ACT legislative scheme as a whole.
My reasons continued: “There is a real risk that by focusing too closely on the wording of s53 of the ACAT Act in matters such as this the Tribunal will lose sight of the primacy of public safety that is required to be uppermost in the considerations of the Board. Under this new National Law the Board’s important role in protecting public safety by removing a doctor from practice must not come to be viewed in any practical sense as supplanted by the Tribunal. It is important that no precedent is set for applications to the Tribunal for stays on orders of suspension made by the Board as a matter of course; or sense of entitlement established for rolling stays.”
Member Chenoweth and Member Greagg found the criteria for a continuation of the stay satisfied on the balance of probabilities. They declared they were “not satisfied that public safety or the public interest requires an immediate cessation of practice”. They also found “it would not be consistent with procedural fairness to make a decision now not to continue the stay orders. This would terminate the Doctor’s right to practice, even for a period, where there is no immediate pressing public safety issue shown to the Tribunal, and the final resolution of the matter is in the future”. They found that “the particular nature of the Doctor's specialty and practice must mean that the issue of public safety is a major concern to the Tribunal. The provisions of the National Law reinforce this emphasis”. They imposed an additional condition “that the Doctor must attend a medical practitioner nominated by the Board on the dates and the time specified by the practitioner for the purposes of examination and report to the Board, and through it to the Tribunal, on the issue of whether the Doctor is currently fit to practice. If required by the practitioner, the Doctor may undergo such a program of drug testing for prescription and non- prescription drugs and their levels”.
In dissenting I concluded: “
The Board is experienced in regulating matters of this type. We were informed by counsel for the Board that it was well aware of the financial consequences of its making an order for suspension of registration, but that it believed on the evidence before it that the Doctor posed a sufficiently serious risk to public safety. On the evidence I have heard I agree with that view. There are major unresolved issues about this Doctor’s lack of insight and impulse control, unexplained causes of irrationality that mentoring and a boundary violation course will not address. On the balance of probabilities

I have not heard any evidence that persuades me to differ from the Board’s view that this Doctor poses in his continued practise a significant risk to the public. In my view the Tribunal should not lightly interfere with the decision of the Board to immediately suspend if necessary to protect public safety. The evidence

I have heard increases rather than subdues my concerns about the safety of members of the public contacting this doctor in a professional context.”
Application for disqualification on grounds of apprehended bias
On 18 July 2011, the Doctor filed an application that I disqualify myself from OD10/13 on grounds of apprehended bias. There was no allegation of actual bias.
The basis of the Doctor’s claim involved allegations that “a fair minded lay observer would understand that there are two proceedings on foot and that the proceeding in which the decision was made which relates to a stay of the Board’s immediate action essentially raises the same issues as those which are required for the final determination of the substantive proceedings commenced by the Board in OD10/13”. I agree with that statement.
The Doctor then alleged that the concluding paragraph of my reasons in OD10/12 (reproduced in paragraph 13 above) involved statements that (a) did not indicate they were preliminary or tentative (b) did not indicate any recognition that no final submissions had been made in the substantive proceedings (c) had clear indications of conclusiveness about them and
(d) related to matters going to issues of central importance to the final determination of the case.
The Doctor focused on the following statements in that paragraph as allegedly indicating that I might not be open to persuasion in relation to OD10/13:
“‘this Doctor’s lack of insight’…’this Doctor’s lack of…impulse control’…’unexplained causes of irrationality’…’I have not heard any evidence that persuades me to differ from the Board’s view that this Doctor poses in his continued practise a significant risk to the public’ and ‘that mentoring and a boundary course will not address.’”
In response to the application that I disqualify myself on grounds of apprehended bias, the Board on 7 August 2011 lodged a response. Its conclusion was that no apprehension of bias arose and that I should continue to hear the proceedings.
The Board as the basis for this conclusion argued that accepted legal tests for apprehended bias require that the hypothetical fair-minded observer have attributed an actual knowledge of the circumstances of the case. The Board stated that the application of the apprehended bias test is ‘greatly diluted’ in its application to Tribunals and that in this regard the following features of the Tribunal’s statutory functions and procedures need to be considered: natural justice and procedural fairness are required (s7 ACAT Act), but the Tribunal is not bound by the rules of evidence (s 26 ACAT Act) and is designed to involve rapid and informal proceedings (s6 ACAT Act).
The Board likewise noted that the statutory context for this apprehended bias claim must involve an understanding that the Tribunal can decide its own procedures (s 23 ACAT Act), that an interim order only remains in force for 12 weeks (s 53 ACAT Act), that the Tribunal may hear an application jointly with another application that arises from the same or similar facts (s56 ACAT Act), that the Tribunal is the responsible tribunal for the purposes of the Health Practitioner Regulation National Law, and that this requires the Tribunal to make determinations about unprofessional conduct and professional misconduct.
The Board emphasized the following statement form Mason J (as he then was)

in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:

            “It needs to be said loudly and clearly that the ground of disqualification is
             reasonable apprehension that the judicial officer will not decide the case impartially
            or without prejudice, rather than that he will decide the case adversely to one party.”
The Board argued that it would be unrealistic and even contrary to my statutory function for me not to form and express an opinion having heard all the evidence in OD10/13 that would be relevant to OD10/12 because the factual issues are the same. The Board pointed out that both the Board and the Doctor relied on evidence in the substantive proceedings in support of their respective arguments on the stay application. The Board also noted that during the course of the stay application I referred expressly on at least four occasions to the fact that the Tribunal had not yet heard final submissions and therefore could not reach a concluded view on the question of professional misconduct.
The Board pointed out that the Doctor’s lack of insight, the causes of the Doctor’s admitted irrationality and whether the Doctor, by continuing to practise might pose a risk to the public, were all live issues on the stay application in respect of which I was entitled (and in respect of the last issue, required) to make findings on the stay application.
Finally, the Board acknowledged that the case law indicated that where, as here, an allegation of apprehended bias is based solely on the content of reasons in an interlocutory matter, it can be cured and corrected by a subsequent statement (per Deane J in Webb v The Queen (1994) 181 CLR 41 at 73-74). The Board noted that in Johnson v Johnson (2000) 174 ALR 655 the court stated: “a preliminary impression created by what is said or done may be altered by a later statement…When, on the following day, the judge gave an explanation of what he had intended to convey by his earlier remarks, there was no reasonable ground for not accepting that explanation.”
Likewise, the Board noted that in Australian Securities and Investments Commission v Rich [2004] NSWSC 970 Austin J, in refusing to disqualify himself on grounds of apprehended bias, stated: “where, as in the present case, the application for disqualification is partly based on a reading of a passage in a judgment that does not reflect the intended meaning of that passage, it is appropriate for the judge, in responding to the application, to explain clearly the meaning he intended to convey in that passage.”
On 9 August 2011, the Doctor replied to the Board’s submission on apprehended bias. The Doctor rejected the Board’s claim that in ACAT proceedings the application of the apprehended bias test was ‘greatly diluted’ particularly by the capacity that a particular member might have a particular non-legal expertise. The Doctor claimed also that my reasons in OD10/12 did not expressly or impliedly pick up the majority references to the importance of procedural fairness, that no findings had yet been made, and that each party had yet to make its closing submissions in OD10/13.
The Doctor argued that the alleged apprehension of prejudgement and lack of openness to persuasion in my reasons should not be read alongside the fact that in the transcript of the stay application OD10/12 I expressly referred on numerous occasions to the issue that the Tribunal had not yet heard final submissions in the substantive matter (OD10/13) and thus could not reach a concluded view on the question of professional misconduct. The Doctor reiterated that the terms of my reasons evinced an “emphatic, final and concluded view, made prior to the conclusion of the case, on issues which are fundamental to the determination of the case.”
Finally the Doctor asserted that it was not open to me to attempt to ‘cure’ a misapprehension of bias chiefly because such a subsequent correcting statement would have been ‘prompted’ by the Doctor’s application and would be “unlikely to eradicate the strong impression given by the unequivocal words” of my dissenting reasons.

Human rights and the requirement to balance applicant detriment and public safety

The crux of this application is in what circumstances can it be possible for a member of this Tribunal to publish reasons and make an order refusing to prolong the duration of a stay of immediate suspension from medical practice under s 53 of the ACAT Act (particularly in circumstances where some or all of the evidence in the substantive matter has been heard). Is such a refusal to prolong the stay inevitably going to result in a claim of apprehended bias?
The Board indeed bears an important responsibility under the National Law to properly exercise its power of emergency suspension to immediately remove serious and immediate threats to public health and safety. Illustrative examples of such cases could include (but obviously are not restricted to) doctors deliberately killing elderly patients to obtain financial advantage, doctors systematically sexually abusing children or female patients, doctors deliberately falsifying medical records or withholding prompt disclosure of information about medical negligence to deny relatives the truth about the death of a patient, surgeons maiming or killing patients through incompetence, and doctors attempting to work while under the influence of drugs of addiction or while suffering incapacitating mental illness.
One reason why the ACT legislative scheme requires a balancing of detriment

and harm under s 53 of the ACAT Act and protecting public health and safety

under the National Law is section 30 of the Human Rights Act 2004 (ACT).

Section 30 of the Human Rights Act 2004 (ACT) provides:

So far as it is possible to do so consistently with its purpose, a Territory law must be
interpreted in a way that is compatible with human rights.
This provision is similar to s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Section 9 of the Human Rights Act 2004 (ACT) refers to the international human right to life and section 10 provides:
10 Protection from torture and cruel, inhuman or degrading
treatment etc
(1) No-one may be—
(a) tortured; or
(b) treated or punished in a cruel, inhuman or degrading way.
(2) No-one may be subjected to medical or scientific experimentation or
treatment without his or her free consent.

In R v Fearnside (2009) 165 ACTR 22; 228 FLR 77, Besanko J (with whom the other members of the Full Court agreed) held that there was a three stage process to be followed when considering the application of the Human Rights Act 2004(ACT). A similar approach was taken under the Victorian Human Rights Charter in R v Momcilovic (2010) 265 ALR 751 and was said to require
(1) ascertaining the meaning of a provision, (2) whether it breaches a protected human right, and (3) whether any limit on the right is justified. This is in the context that provisions such as s 32(1) of the Victorian human rights legislation and s 30 of the ACT human rights legislation do not “create a ‘special’ rule of interpretation, but rather form[s] part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question.” This approach was endorsed by Penfold J in In the Matter of an Application for Bail by Isa Islam [2010] ACTSR 147.
In my view, section 30 of the Human Rights Act 2004 (ACT) does not require an ambiguity in ACT legislation to be located before it is activated. It operates to require that all legislation in this jurisdiction be interpreted for human rights compatibility as part of every judicial and administrative decision. Section 30 thus requires that s 53 of the ACAT Act be interpreted so that so far as it is possible to do so consistently with its purpose, it is compatible with human rights, in this case those mentioned in sections 9 and 10 of the Human Rights Act 2004 (ACT). If, as is mooted, the ACT human rights legislation comes to include a human right to health, then s 53 of the ACAT Act would also have to be interpreted as compatible with that.
Thus, whilst weighing the financial disadvantage to the Doctor in this case should the stay of immediate suspension be lifted (as required by s 53 of the ACAT Act), the Tribunal also is required to weigh the threat to public health and safety under the National Law under which the Tribunal has responsibilities so as to ensure compatibility with human rights obligations, such as those in sections 9 and 10 of the Human Rights Act 2004 (ACT).
The European Court of Human Rights in Osman v. the United Kingdom (ECJ Reports 1998-VII), for example, stated that the right to life (as set out in article 2 of the European Convention on Human Rights) requires the agents of the State to do “all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge” (ibidem. p. 3159-60, § 116). The right to life in article 9 of the ACT Human Rights
Act 2004 (ACT) thus requires ACT legislation (such as s53 of the ACAT Act) to be compatible with the government taking appropriate steps to safeguard the lives of those within its jurisdiction (see the L.C.B. v. the United Kingdom ECJ Reports 1998-III, p. 1403, § 36).
The right to life in article 9 of the ACT Human Rights Act 2004 (ACT) similarly requires ACT legislation (such as s53 of the ACAT Act) to be compatible with an obligation to create “an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter.” (William and Anita Powell v. the United Kingdom – ECJ Application no. 45305/99 4th May 2000).

Illustrative examples of balancing applicant detriment and public safety

Cases involving stays of immediate suspension of a pilot’s license provide a good illustration of how the interaction of interlocutory and substantive proceedings on the same subject matter involves a balancing of applicant detriment and public health considerations.
The Administrative Appeals Tribunal (AAT) initially refused to make stay orders to permit airlines to continue flying pending an appeal against an immediate suspension of a pilot’s licence by the Civil Aviation Authority (Re Ramsay and Dept of Transport (1977) 2 ALD 97; Re Aquatic Airways Pty Ltd and Civil Aviation Authority (1989) 22 ALD 766; Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380).
In McPherson v Civil Aviation Authority (1991) 22 ALD 754, it was held "... it would require a strong prima facie demonstration that a decision to suspend [a pilot's licence] was totally unreasonable in the sense of being without foundation in fact or law for this court to override, even temporarily, the view of the Civil Aviation Authority or the AAT constituted as the present tribunal partly was by members with special expertise in this area".
In Re Pelling and Secretary, Dept of Aviation (1984) 5 ALD 638, an application was made for an order staying the suspension of the applicant's pilots licence on the grounds of uncompensable hardship. The AAT made the stay order but drew a distinction with cases where the suspension of the licence was based on medical grounds or related breaches of the Air Navigation Regulations where the safety of the public would normally outweigh any personal hardship the applicant might suffer. This approach was followed in Re Commins and Civil Aviation Safety Authority (2004) 86 ALD 637; BC200410907.
A stay was granted in Re Edwards and Civil Aviation Safety Authority (2003) 74 ALD 572 because the case for suspending the pilot’s licence was weak and it would allow continuation of air service to a remote community.
In Re Anderson and Civil Aviation Safety Authority (2008) 101 ALD 360, a stay was permitted because as the event in question had occurred some time previously and the authority had not immediately exercised its power to suspend the pilot thus presumptively indicated the lack of immediate danger to the public.
In Re Znotins and Registrar of Weapons (1994) 33 ALD 384, public safety was a major factor influencing the AAT to refuse an order to stay the suspension of a weapons licence.
Whether it was in the public interest to continue a stay of a decision adverse to the applicant was considered a major factor in Re XTWK and Australian Securities and Investments Commission (2007) 98 ALD 131; BC200709209 and this was endorsed in Re Zarfati and Australian Securities and Investments Commission [2008] AATA 989; BC200809792.

Standard of proof to be applied in a stay application

In OD10/12, both Member Chenoweth and Member Greagg in their majority reasons and my dissenting own reasons indicated that the standard of proof on an interlocutory stay application under s53 of the ACAT Act was the balance of probabilities. The Doctor did not challenge this.
It seems to me, however, that where what is being considered in a stay application, is whether to continue an immediate suspension from practice because the financially detrimental outcome may be in the best interests of public health and safety; then the balance of probabilities should take into account the gravity of the situation both for the Doctor and for the public.
The test is sometimes expressed as being ‘comfortably satisfied having regard to the gravity of the matter’. In Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J held (in a frequently cited statement) at 361-362:
Fortunately ... at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved…The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. '
Should it subsequently be found that this so-called Briginshaw standard was appropriate for the determination of the stay application in OD10/12 then it is appropriate for me to declare that I also found this standard met in relation to the findings of fact that I made on the evidence available to me at that point.

The Apprehended Bias Issue

To establish apprehended bias on this application the Doctor must show that what I have written in my decision in OD10/12 might cause a fair-minded lay observer with knowledge of the material objective facts to reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the substantive issues in matter OD10/13 according to their legal and factual merits.
The fact that I have made a finding adverse to the Doctor is insufficient to sustain a case of apprehended bias (Re iNova Pharmaceuticals (Australia) Pty Ltd and Secretary, Department of Health and Ageing ([2011] AATA 196)).
The apprehended bias test is not ‘diluted’ in administrative as compared to judicial proceedings. It is important to the stable framework of a society governed by the rule of law that public confidence in the impartiality of both judicial and administrative spheres is upheld. This is critical to maintaining foundational social virtues such as formal and distributive justice, equality, respect for human dignity and, increasingly, respect for environmental sustainability and their associated ethical and legal principles and rules. Rather, the difference chiefly arises from the differing underlying rationales for the tests.
In the judicial sphere apprehended bias arises as a consequence of the importance of maintaining public confidence in the doctrine of judicial independence under the common law and under the Constitution Chapter III (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343 and 363 (per Gaudron J).
In the administrative sphere apprehended bias arises as a result of natural justice or procedural fairness requirements such as those specified in s 7 of the ACAT Act (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR, 425 at 246.).
It has frequently been stated that Tribunal members should not be overly ready to recuse themselves on the ground of bias. As Flick J stated in SZMJA v Minister for Immigration and Citizenship [2008] FCA 1773; BC200810447 at [7]:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson [(1976) 136 CLR 248] and Livesey [(1983) 151 CLR 288] has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546 at 553-4]; Watson [(1976) 136 CLR at 262]; Re Lusink; Ex parte Shaw [(1980) 32 ALR 47 at 50-1]. 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.

In Laws v Australian Broadcasting Tribunal (1970) 170 CLR 70 at 87 Mason CJ and Brennan J held that the fair-minded observer involved in the application of this test had to be imputed with knowledge of the “actual circumstances of the case.” In this instance this would involve awareness that, as the Board pointed out in its application, during the course of the stay application, I referred expressly on at least four occasions to the fact that the Tribunal had not yet heard final submissions and therefore could not reach a concluded view on the question of professional misconduct.
The Doctor did not contest the fact that I made such references, though their materiality was disputed. Even if it is held that the fair-minded observer with knowledge of the ‘actual circumstances of the case’ would be unaware of the contents of the transcript of the proceedings (a proposition I do not assent to), I have now made their uncontested presence plain in this decision.
As I have indicated earlier, it is clear that an application for disqualification for apprehended bias must be viewed in the context of the range of statutory responsibilities on the relevant decision-makers. On the stay application OD10/12 the Tribunal was required to weigh financial detriment to the applicant (under s 53 of the ACAT Act) against the risk to public health and safety under the National Law.
The Board and the Doctor presented evidence on the substantive matter (OD10/13) to the Tribunal prior to the stay application (OD 10/12) that the Tribunal simply could not ignore if it was properly to fulfil its functions; indeed both parties made reference to such evidence in their submissions on the stay application.
I formed a view as a result of the evidence that I had heard to that point that “There are major unresolved issues about this Doctor’s lack of insight and impulse control, unexplained causes of irrationality that mentoring and a boundary violation course will not address”. This finding in my view was justified by the evidence and was a live issue during the stay application. The Board had presented evidence on these issues and pressed them strongly during the course of OD10/13. These findings in my view where coherent with the new order in OD10/12 for the Doctor’s clinical examination with the capacity for drug testing.
These were findings adverse to the Doctor, but did not involve my mind becoming finally closed to persuasion one way or the other. Indeed I made it clear that I specifically agreed with the majority order for a clinical examination and drug testing of the Doctor. This, amongst other things, was to ensure that when final submissions came to be made on OD10/13 counsel for the Board or the Doctor might be in possession of data that explained the Doctor’s apparent lack of insight and impulse control and hitherto unexplained causes of irrationality. I remain open to be convinced as to the significance of that information or any other points that are raised in final submissions according to the flexible rules of evidence and procedure pertaining in this jurisdiction.
It is well accepted that where a claim of apprehended bias is based solely on the terms of a decision, that apprehension can be remedied by a subsequent clarification (Re JRL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568 at 572 and 577). This I have done here, by indicating

I remain open to be convinced either way on the merits of the case in OD10/13.
The Doctor’s argument that this subsequent clarification is not a genuine remedy because it is somehow ‘prompted’ by their application, disregards the natural justice and procedural fairness obligations upon me. These required

I obtain and properly analyse the Board’s submission on the matter and indeed the Doctor’s reply to that submission before expressing a concluded view on the issues.

………………………………..

Assoc Prof Thomas Faunce
Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO:OD 13 of 2010

APPLICANT: Hugh Victor Veness
RESPONDENT: Medical Board of Australia

COUNSEL APPEARING: APPLICANT: Mr David Mossop

RESPONDENT: Ms Caroline Spruce

SOLICITORS: APPLICANT: Minter Ellison

RESPONDENT: ACT Government Solicitor

OTHER: APPLICANT: N/A

RESPONDENT: N/A
TRIBUNAL MEMBER/S: Associate Professor T Faunce

DATE/S OF HEARING: Decision on papers PLACE: CANBERRA

DATE/S OF DECISION: 12 August 2011 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

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