LAWS2201 Lecture Notes - Lecture 11: Stephen Gageler, City Of Knox, Penal Labour
Bias Rule
Two types of bias
• Actual bias is present where a decision-maker’s mind is so closed to persuasion that argument
against that view is ineffectual: Jia. It is impossible to prove and rarely argued.
• Apprehended bias arises where 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: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
o Apprehended bias is objectively ascertained and all it needs is a real and not remote
possibility
1. What is the behaviour that may lead to a decision other than on its legal or factual
merits and
2. That this behaviour is connected to a biased outcome
o A fair-minded observer has knowledge of the particular facts and not a broad general
knowledge: Webb v R
Defences include necessity, waiver , consent and statutory modification
o In Clenae , the HC would not have ordered a new judge to rehear the case where a
principal witness had died
o Declaration of interest may lead to waiver, which is common before hearings b/w parties
where judges may hold a parcel of shares in one of the litigants
o Claim of bias should be raised at the earliest opportunity : Vakauta and Owens
o Usually hard to establish a reasonable apprehension of bias where the source of bias
is not held by the formal decision maker like in Hot Holding
o where the Minister was unaware of the interests of the associates who was involved in the
decision-making process. The officers had a peripheral role.
Impartial Mind may appear to be lacking :
1. Making of derogatory or insulting statements: Vakauta v Kelly
2. Personal connections or contacts with interested people: depending on factors like the nature of
association, the frequency of contact, the nature of the interest of the person associated with the
decision-maker- Hot Holding v Creasy, at 461
3. Prior involvement with the matter being determined: Isbester v Knox City
4. Prejudgement: there is a reasonable fear that the decision-maker's mind is so prejudiced in favour
of a conclusion already formed that the conclusion will not be altered despite evidence or
argument: Laws per Gaudron & McHugh JJ
• Any direct pecuniary interests in the outcome automatically disqualifies a decision-maker: Dimes v
Proprietors of the Grand Junction Canal
• If holding a not insubstantial/pecuniary/proprietary interests in the outcome, this will 'ordinarily
result in disqualification: Ebner v Official Trustee , at 358
• 'fair-minded person', open mind does not need to be an empty one Jia Legeng, at 531
• Predisposition/tendency of mind does not of itself indicate that a decision-maker is unwilling to
listen to argument: R v Commonwealth Conciliation and Arbitration Commission; Ex parte
Angliss Group
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Main Cases
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
• HCA majority found the Minister’s statements on radio and in a letter to the President of the
AAT did not give rise to a reasonable apprehension off bias in re to a Chinese national and
NZ citizen living in Australia
• Kirby J (in dissent): the conclusion was based upon a lawyer's fine verbal analysis of the
evidence, rather than the general impressions as a reasonable person would bring to the task
Facts
• Jia concerned a Chinese national who was convicted of four offences involving harm to, and
sexual penetration of, a woman. Minister’s delegate refused a visa, overturned by AAT.
• Aug 1995, a delegate of the Minister refused his visa application for special entry permit,
where the delegate had acted following recommendation by an officer of the Dpt of
Immigration and Ethnic affairs, and also taken into account a procedures advice manual
which offered guidance to decision-makers
• The policy was about a person is not of good character if they have had past criminal
conduct and sentenced to imprisonment of no less than a year, but a decision-maker
should consider all relevant factors including whether the applicant had shown by
subsequent conduct that he of she was reformed.. The likelihood of re-offending etc.
• The decision was remitted to the Minister after getting to the Federal Court from the AAT.
• S 501 of the Migration Act, the Minister could cancel a visa, the Minister was satisfied that
the person holding the visa was not of good character
• Minister participated in a radio interview, during which he expressed concern about the
AAT’s decision and expressed views about the manner in which he might deal with the non-
citizen’s case. He stated his beliefs about the character of persons who had committed crimes
and had been punished by imprisonment.
• “I don’t believe you are of good character if you’re committed significant criminal offences
involving penal servitude”;
• “…. I am concerned about a number of recent decisions made by the AAT allowing convicted
offenders to remain in Australia”;
While the number of cases overturned by the AAT are not large these cases are sensitive and
significant, in that they…... undermine the confidence of the community”, and “… are against
the Government’s requirements for which I am responsible for and accountable to
Parliament”;
• “The Tribunal incorrectly exercised the discretion under s 501 to grant him a visa, despite
Mr Jia’s sentence to six and half years imprisonment;
• “That persons such as Mr Jia can be found to be of ‘good character’, despite his recent
conviction for a serious crime undermines the Government’s ability to control entry into
Australia on character grounds”
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Document Summary
Two types of bias: actual bias is present where a decision-maker"s mind is so closed to persuasion that argument against that view is ineffectual: jia. If holding a not insubstantial/pecuniary/proprietary interests in the outcome, this will "ordinarily result in disqualification: ebner v official trustee , at 358. Minister for immigration and multicultural affairs v jia legeng (2001) 205 clr 507: hca majority found the minister"s statements on radio and in a letter to the president of the. Aat did not give rise to a reasonable apprehension off bias in re to a chinese national and. Nz citizen living in australia: kirby j (in dissent): the conclusion was based upon a lawyer"s fine verbal analysis of the evidence, rather than the general impressions as a reasonable person would bring to the task. Jia concerned a chinese national who was convicted of four offences involving harm to, and sexual penetration of, a woman.
