Tuesday 4 August 2015

Regulators and decision-makers, it's a dog's life

The recent High Court decision in Isbester v Knox City Council [2015] HCA 20 reinforces to regulators that their staff cannot act as jury, judge and executioner, and they must apply the principles of natural justice to each decision, acting without any perception of bias.
On 10 June 2015, the High Court in essence held that the same staff within a regulator cannot be involved in the prosecution of a criminal charge then sit on a review panel for a related matter, even if not acting as the final decision-maker, due to the perception of bias.
Facts of case
Ms Hughes was a Council employee who, as an authorised officer, charged Ms Isbester with an offence under s 29 of the Domestic Animals Act 1994 (Vic) relating to an attack by her dog.
Later, Ms Hughes sat as a member of a three-person panel which deliberated and recommended to the chairperson of that panel, who was the ultimate decision maker, that he make an order to destroy the dog under s 84P(e) of the same Act.
The High Court considered the question of whether there was a possibility that Ms Hughes could have prejudged the decision to destroy the dog after her involvement in the prosecution of the charges against Ms Isbester, and whether that could give rise to an apprehension of a conflict of interest.
Principles of bias
The well-known principle governing cases of possible bias was said in Ebner[1] to require two steps:
1.         An interest which might lead a decision-maker to decide a case other than on its legal and factual merits.
2.           A logical connection between that interest and the feared deviation from the course of deciding the case on its merits.
Ms Isbester had alleged that:
(a)          Ms Hughes had such an 'interest' as a person bringing charges, whether as a prosecutor or other accuser, in the outcome of the hearing of those charges; and
(b)          This interest would conflict with the objectivity required of Ms Hughes as a member of another decision‑making body deciding the consequential matter of whether to destroy the dog.
Joint judgment
In their joint judgment, the Honourable Justices Kiefel, Bell, Keane and Nettle held at [42] that:
It is not realistic to view Ms Hughes' interest in the matter as coming to an end when the proceedings in the Magistrates' Court were completed.  A line cannot be drawn at that point of her involvement so as to quarantine the Magistrates' Court proceedings from her actions as a member of the Panel.  It is reasonably to be expected that her involvement in the prosecution of the charges created an interest in the final outcome of the matter.
Of course, the "final outcome of the matter" was the decision of whether to destroy the dog.
Their Honours held at [43] that:
Having participated in obtaining the conviction for the offence under s 29(4), [Ms Hughes] organised the Panel hearing and drafted the letter advising [Ms Isbester] of it.  She supplied the Panel with evidence, including further evidence she had obtained as relevant to the future housing of the dog.  If Ms Hughes could not actually be described as a prosecutor with respect to the decision under s 84P(e), she was certainly the moving force.
A fair-minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision under s 84P(e).
Their Honours confirmed that this was the case even though the primary judge had found that Ms Hughes had acted nothing other than diligently, and in accordance with her duties, or that she was in fact wholly impartial.  They said that "natural justice required, however, that she not participate in the decision and because that occurred, the decision must be quashed."
So, the decision to destroy the dog was set aside.  As they say, every dog has it's day...
Victorian Government clients seeking advice on investigations and the prosecution of criminal charges, can contact:
Principal Solicitor
8684 0423

Managing Principal Solicitor
8684 0414

[1] Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337

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