Apprehended bias and the nuclear effect - lessons from the New Acland proceedings
William Isdale & Nicholas Simoes Da Silva
24.03.21
On 3 February 2021, the High Court delivered its judgment in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2020] HCA 2 (‘New Acland HCA’). The decision arose out of applications by New Acland for approvals to expand its coal-mining operations near Toowoomba. The proceedings were initially concerned with issues of noise, groundwater and intergenerational equity, amongst other things. However, the litigation took a turn when allegations of apprehended bias were raised against the Land Court member.
In the judgments that followed, courts expressed different views on (1) whether the allegation of apprehended bias was made out; and (2) if it was, what the consequences would be. In this post we summarise the course of the New Acland proceedings and consider the key lessons that emerge in relation to apprehended bias.
Background to the non-appellate proceedings
Oakey Coal Action Alliance and others objected to the applications made by New Acland for a mining lease and amended environmental authority – the approvals it needed to expand its mine. As a result, the applications were referred to a hearing in the Land Court of Queensland. After almost 100 days of hearing, the Land Court (per Member Smith) recommended refusal of the applications (New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, DES (No. 4) [2017] QLC 24, [1858]-[1859] – ‘New Acland Land Court’). It was an exercise of the Land Court’s administrative, rather than judicial, functions.
New Acland sought judicial review of the decision in the Supreme Court of Queensland (per Bowskill J). It was successful in relation to several discrete issues, but unsuccessful in its allegation that the Land Court’s decision was affected by apprehended bias (discussed further below) (New Acland Coal Pty Ltd v Smith [2018] QSC 88, [187]-[188] – ‘New Acland Supreme Court’). Justice Bowskill made orders for reconsideration of the applications which required a differently-constituted Land Court to be bound by most of the factual findings of Member Smith, other than those in relation to which reviewable error had been established (New Acland Coal Pty Ltd v Smith (No 2) [2018] QSC 119).
Following reconsideration by the Land Court, Kingham P ultimately recommended that New Acland’s applications be granted (New Acland Coal Pty Ltd v Ashman (No 7) [2018] QLC 41, [275]). In reliance on those recommendations, the Chief Executive of the Department of Environment and Science granted New Acland one of the approvals it sought. Crucially, this reconsideration was completed prior to an appeal against Bowskill J’s reasons being heard by the Court of Appeal (discussed below).
The allegation of apprehended bias
The allegation that the Land Court’s first decision was affected by apprehended bias initially arose out of conduct of Member Smith at a hearing. Media reports featuring New Acland representatives had implied that delays in the proceedings were caused by the Member taking leave, and that this would potentially result in lost jobs. Member Smith convened a hearing to “provide NAC [New Acland] with an opportunity to explain its actions”. The hearing that followed was conducted in a manner that was “unfortunate and inappropriate” (New Acland Supreme Court, [130]-[138]).
In the Supreme Court judicial review proceedings, Bowskill J concluded that the hypothetical fair-minded lay observer (per Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] – “lay observer”) may have considered that the Member had “taken personal offence” and laid responsibility for the media reports’ imputations at the feet of New Acland. Further, that the lay observer may have concluded that the Member had views about New Acland being prepared to engage in inappropriate conduct (New Acland Supreme Court, [140]).
Nonetheless, her Honour was not persuaded that there was a connection between that conduct and the published judgment. The lay observer was to be “taken to be informed by reading the Reasons as a whole”, which were almost 460 pages long. Having done so, the lay observer “would not reasonably be left with the impression that the Land Court member may not have brought an impartial mind” to the issues in question (New Acland Supreme Court, [187]).
However, the saga was far from over.
The Court of Appeal’s judgment
Both parties appealed against Bowskill J’s judgment. Crucially, New Acland contended that Bowskill J had erred in concluding that there was no apprehended bias in the judgment of Member Smith.
The Court of Appeal’s judgment focused, in particular, on comments in Member Smith’s reasons which it considered gave rise to fresh apprehensions of bias. Those comments included: a suggestion that New Acland may have engaged in a “deliberate ploy” to pressure someone, without providing evidence in support; about New Acland acting “quite intentionally like a bull in a china shop”; and that it had a “tendency to treat anyone who disagrees with it in a dismissive and disrespectful manner”. These were “unnecessary, unsupportable and irrational criticisms of Acland’s commercial behaviour” which evidenced a lack of impartiality (Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184, [80]-[84], [102] – ‘New Acland QCA’).
Accordingly, the Court of Appeal concluded – contrary to Bowskill J – that the Land Court’s first judgment (per Member Smith) was affected by apprehended bias (New Acland QCA, [99]). Crucially, however, the Court declined to set aside the subsequent recommendations of the Land Court (per Kingham P). Their Honours said that was because they comprised “valid orders of the Land Court and, subject to being set aside on appeal, they bind the parties”. There had been no appeal against Kingham P’s orders (Oakey Coal Action Alliance Inc – New Acland Coal Pty Ltd (No 2) [2019] QCA 238, [17]).
The High Court’s judgment
The issue in contention in the High Court was not as to whether there was apprehended bias in the initial Land Court judgment (per Member Smith) – on that the parties were agreed. Instead, the issue was what consequence such a conclusion would have in the circumstances. In particular, had the Court of Appeal been correct to permit Kingham P’s recommendations to stand? Or, as Oakey Coal Action Alliance suggested, did the fact that those recommendations were founded in part on factual findings made in the impugned first-instance judgment of Member Smith mean that they too had to be set aside?
New Acland argued that Kingham P’s recommendations were supported by the remittal orders made by Bowskill J. Those orders were made pursuant to s 30(1) of the Judicial Review Act 1991 (Qld), which permits an order that any further consideration be made “subject to such directions … as the court determines”. Those directions had relevantly included that the factual findings of Member Smith – where they were not otherwise the subject of successful judicial review – be accepted in any further reconsideration (New Acland HCA, [33]).
The High Court unanimously concluded that Kingham P’s recommendations could not stand. In so concluding, the plurality of the Court (per Kiefel CJ, Bell, Gageler and Keane JJ) emphasised that the orders of Bowskill J could not “authorise a decision-maker to engage in a process of further consideration that is in excess of the decision-maker’s statutory jurisdiction”. The decision-maker in this case was the Land Court, and it was particularly significant that it was established as a court. That carried with it a requirement that, when exercising its functions, it must be “seen to be independent and impartial”. That requirement applied to both its administrative and judicial functions. Because the Land Court is an inferior court, any failure to meet that requirement would exceed its jurisdiction and render any resultant decision “lacking in legal force” (New Acland HCA, [41], [47]-[48]).
In summary, by acting on some of the findings of Member Smith, the further recommendations of Kingham P “breached a condition of the exercise of the Land Court’s jurisdiction” (namely being, and being seen to be, independent and impartial), and were therefore appropriately characterised as “nullities”. So too was any subsequent approval founded on those recommendations, since the relevant statutory regime was premised on a process that afforded procedural fairness. Accordingly, the High Court set aside the recommendations and approval, and ordered that New Acland’s applications be referred back to the Land Court for a complete reconsideration (New Acland HCA, [49], [50], [57], [71]).
Lessons from New Acland
The High Court’s judgment clearly illustrates that a failure to afford procedural fairness can have wide-reaching consequences. Factual findings made in an impugned judgment that are relied upon for other decisions – even where they are of an administrative character – may render those other decisions invalid too. In other words, the High Court has confirmed what one commentator describes as the “nuclear effect” of a finding of apprehended bias, given the potential for shock-waves to impact further afield. In this case, the flow-on consequences affected not only the recommendations of Kingham P, but also approvals founded on those recommendations. That all of this could arise out of conduct at a much earlier stage evidences the high standards of ‘purity’ that courts must satisfy, in being free of the taint of procedural unfairness.
The New Acland proceedings also show just how costly and time-consuming a failure to afford procedural fairness can be. The proceedings have already involved a colossal expenditure of resources, and – from the perspective of the parties – have effectively amounted to nought, since the whole process must now start over. The initial Land Court hearings alone considered “almost 2,000 exhibits containing many tens of thousands of pages of material, and well in excess of 2,000 pages of submissions” – to say nothing of all the subsequent hearings (New Acland Land Court, [19]). The impact on access to justice, and on the courts, is substantial.
All of this points strongly to the need for judicial officers to avoid apprehended bias in the first place, and (potentially) to resolve allegations that impartial justice has not been provided at an early stage, before any continuation of or further related proceedings. The approach taken by Lee J in Webb v GetSwift Limited (No 6) [2020] FCA 1292 provides a good example. His Honour declined an application that he disqualify himself. However, he also granted leave to any party that wished to appeal his decision (facilitating a speedier resolution, given that an application for leave to appeal would otherwise have been required). Getswift appealed and, in a judgment delivered on 5 March 2021, the Full Court of the Federal Court (GetSwift Limited v Webb [2021] FCAFC 26) allowed the appeal and ordered that the proceedings be reallocated to a different judge. The early resolution of the issue, and the pause in the proceedings, minimised the risk of wasted time and resources.
Whether existing law and practice can do more to manage and address claims of bias against judicial officers is worthy of consideration. It is hoped that the High Court might offer some further guidance when it delivers its judgment in an appeal from Charisteas & Charisteas and Ors [2020] FamCAFC 162, which was granted special leave in February 2021. Additionally, the Australian Law Reform Commission is currently conducting a Judicial Impartiality Inquiry – an area of law that has, so far as the authors are aware, never been subject to any official review in this country, having instead evolved only as part of the common law. The Inquiry is tasked with considering: whether the law is sufficient to maintain public confidence in the administration of justice; whether enough clarity is provided to decision-makers and others about how to manage conflicts and perceptions of partiality; and whether current mechanisms for raising allegations of apprehended or actual bias are appropriate.
The key lesson to emerge from New Acland is that the appearance of judicial impartiality by judges and courts – whether they exercise judicial, or administrative powers – really matters. The failure to provide it in any part of a proceeding can have significant consequences for parties, the courts, and for the public’s perception of the justice system. The ALRC’s Inquiry will consider measures that could help avoid scenarios like New Acland in the future. A consultation paper will be released in April 2021, and a formal call for submissions made at that time.
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William Isdale is a Senior Legal Officer at the Australian Law Reform Commission and PhD candidate at the University of Queensland. Nicholas Simoes da Silva is a Legal Officer at the Australian Law Reform Commission. The views expressed in this article are solely their own and not those of their employer.
Suggested citation: William Isdale and Nicholas Simoes da Silva, ‘Apprehended bias and the nuclear effect – lessons from the New Acland proceedings’ on AUSPUBLAW (24 March 2021)