The decision-making process used by a Council’s delegate in exercising power under the Domestic Animals Act 1994 (VIC) (the Act) to order that a dog be destroyed was found to be contrary to natural justice in the High Court case of Isbester v Knox City Council  HCA 20.
The Isbester case decision
The High Court in the Isbester case unanimously held that a fair minded observer might reasonably apprehend that a delegate who took part in the decision-making might not have brought an impartial mind to the decision, given the delegate’s two roles arising out of the dog attack.
The two roles of the delegate
The appellant’s dog was involved in an attack on another dog, and injured the finger of a person who tried to intervene.
The delegate, in her role as Coordinator of Local Laws of the local government, determined that charges should be laid with respect to the attack and instructed Council’s solicitors to prosecute.
The delegate also took an active role in the decision-making process of a panel convened by the Council to determine whether to seek the destruction of the dog under the Act.
Another member of the panel was responsible for making the decision to order the destruction of the dog under the Act.
The appellants appealed to the Supreme Court, and then the High Court.
Reasonably apprehended bias
The appellant did not argue prejudgment. The question before the court was whether an involvement in a matter antecedent to the decision in question was incompatible with participation in that later decision, and whether it could be reasonably apprehended that a person in the delegate’s position would have an interest in the decision that could affect her decision-making.
The Council unsuccessfully argued that the delegate’s interest, if any, as a prosecutor ended when the proceedings in the Magistrates Court came to an end, and that even if she had an interest she did no more than diligently carry out her responsibilities.
The High Court found that the delegate’s role in the Magistrates Court proceeding gave her an interest that was incompatible with her involvement in the decision making process of the panel. That dual involvement led to a finding of apprehended bias.
A personal interest, in the case of a prosecutor or other moving party, refers to a view which they might have of the matter. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred, or that a particular penalty should be imposed, or in obtaining an outcome consistent with the prosecutor’s view of guilt or punishment.
The High Court accepted that it might reasonably be thought that a person’s involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision–making.
Even though another member of the panel was responsible for making the decision to order the destruction of the dog, there was still an apprehension that the involvement of the delegate in the Magistrates Court’s prosecution might affect not only her own decision making, but also that of the other members of the panel.
The High Court observed that a finding of apprehended bias implied nothing about how the delegate in fact approached the matter, or that she acted otherwise than diligently. Natural justice required, however, that the delegate not participate in the decision-making process of the panel, and that the decision to destroy the dog must therefore be quashed.
Lessons for Local Government
A finding of apprehended bias does not require that a councillor or local government officer act in a manner otherwise than fairly or diligently.
It only requires that a fair minded observer might reasonably apprehend that the person who took part in the decision-making might not have brought an impartial mind to the decision.
A local government should ensure that it has process in place to prevent someone in the position of the delegate from acting both as a prosecutor and also as a decision-maker on the same, or related, matter.
For more information on this update, please contact senior associate Philip Mavor on (08) 9321 3755.
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