Posted on July 15, 2015 by

Bias Bites Back – High Court Overturns Council’s Order to Destroy Dangerous Dog

The High Court has overturned the decision of a council which ordered that a dangerous dog be destroyed. Crucial to the High Court’s decision was the finding that the decision to destroy the dog was affected by apprehended bias due to the perception that a Council officer who had initially investigated the matter, and had brought original criminal charges against the dog’s owner, had an interest in the outcome of the Council’s decision that the dog be destroyed.

The case of Isbester v Knox City Council [2015] HCA 20 (Isbester) is significant in its emphasis on the effect that apprehended bias can have on the validity of decisions made in local government.

Notably, the case highlights the the two  categories of bias that potentially apply:

• the first being a conflict of interest, and
• the second being pre-judgment.

Isbester relevantly involved a detailed consideration of the NSW Court of Appeal case of McGovern v Ku-ring-gai Council (2008) 42 NSWLR 504 (McGovern), which is the leading case in NSW regarding apprehended bias in local government decision making.

In particular, the High Court endorsed the two categories of apprehended bias discussed in McGovern. Further, the High Court referred to McGovern in order to demonstrate that the facts in Isbester fell within the category of a conflict of interest, whereas McGovern was a case that dealt with the category of bias by pre-judgment.

What is the test for apprehended bias? 

Apprehended bias was recognised in McGovern as applying in the context of local government decision-making. The test for apprehended bias 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 is required to decide: Ebner v Official Trustee in Bankruptcy. The High Court affirmed this test in Isbester.

Key to the test for apprehended bias is the objective circumstances of the decision. Thus, a court will look at what a fair-minded observer might reasonably apprehend in relation to the partiality of a decision-maker in the circumstances of the decision. Stated as such, the test does not require a finding about how the decision-maker in fact approached the decision to be made.

Apprehended bias: conflict of interest vs prejudgment

In the context of apprehended bias, a conflict of interest will occur where the the decision-maker has a personal interest in the outcome of the decision. This can occur even though the decision-maker may not necessarily obtain a material or other benefit by the decision being made in accordance with the view held.

Alternatively, bias by pre-judgment will arise where the perception is that the position of the decision-maker is said to be “incapable of change”. This form of apprehended bias was central to the facts in McGovern, which considered the effect that the strongly-expressed views of two members had on the final decision reached by the governing body of the council.  

Facts in Isbester

Turning to subject case, Isbester involved a challenge to a Council’s decision under Victorian domestic animal legislation to make a dog destruction order. Specifically, the Council’s decision was challenged on the basis of alleged bias on the part of the Council’s Co-ordinator of Local Laws (Compliance Officer), who had been involved in related criminal proceedings as the lead investigator.

The facts were in summary as follows:

• The Compliance Officer made a decision to enforce charges (Original Charges) in relation to an earlier reported incident which related to a Staffordshire terrier’s (Dog) attack on a person (Complainant) which resulted in a thumb wound.
• The Compliance Officer interviewed the Complainant and instructed the Council’s solicitors to commence a prosecution against the owner of the Dog on the basis of the evidence gathered.
• The day after  proceedings before a Magistrate were heard in relation to criminal charges against the Dog’s owner, the Compliance officer decided to convene a panel of council to determine if the council should make an order that the Dog be destroyed, and she sat on that panel (Council Panel).
• The owner of the Dog was informed by letter from the Council that the Compliance Officer would not be entitled to a vote in the Council Panel’s decision on whether or not the Dog should be destroyed.
• The Council Panel came to the decision, using the evidence before the court in the criminal proceedings, that the Dog should be destroyed.

Court’s decision

The High Court found that there was a perception that the Compliance Officer’s decision to enforce the Original Charges and her later involvement in the Council Panel’s determination of whether to destroy the Dog, gave rise to a conflict which rendered the decision of the Council Panel infected by apprehended bias and therefore invalid.

Significantly, the High Court made this finding in spite of the fact that the Compliance Officer did not have a right to vote on the Council’s Panel. Thus, it was merely the active participation of the Compliance Officer in the decision-making process, including the active gathering and presentation of evidence related to the dog’s past risk-related conduct, which was sufficient to support a finding that the Compliance Officer’s personal interest in the decision invalidated the decision.

The case accordingly emphasises the importance of Council’s being aware of the perception of bias in connection with decision-making and not merely by decision makers alone. As the facts of Isbester show, this perception will arise where there is a logical connection between the “interest” a person may have in a decision, and the feared deviation from the normal course of making the decision on the basis of its merits.

Observations on the Court’s decision

The decision in Isbester does not resolve two differing views considered in McGovern in relation to effect of bias by prejudgment by one or more individuals in a multi-member decision-making body such as the governing body of a council.

Relevantly, in McGovern the approach of Chief Justice Spigelman was that the consequence for the validity of the decision infected by the bias by prejudgment of one or more members of a multi-member decision-making body, depended on whether those person(s) role (effectively) decided (or tipped the balance of) the outcome in the matter.

On the other hand, Justice Basten was of the view that if any member of the body was infected by such bias that this would be sufficient to invalidate the decision, and it was not necessary to demonstrate the effect of that person’s bias, if any, on the decision.

Ultimately, the Court in McGovern did not find that the facts of case involved bias on the part of any of the councillors involved, and thus there was no need to make a final ruling on that issue in that case.  The issue did not arise in Isbester because the matter related to bias involving a conflict of interest.