High Court on apprehension of bias: A person who brings charges has a conflict of interest in deciding matters consequential to those charges
Isbester v Knox City Council  HCA 20
A person who brings charges, whether as a prosecutor or other accuser, has a conflict of interest in participating in a decision on matters consequential to those charges that may give rise to a reasonable apprehension of bias.
Ms Hughes, a Council officer, was responsible for the regulation of domestic animals under the Domestic Animals Act 1994 (Vic). She determined that charges under that Act be laid in the local Magistrates’ Court against the appellant as a result of the appellant’s dog having inflicted an injury on a person. The appellant pleaded guilty to the charges. A panel was then convened by the Council to decide whether the appellant’s dog should be destroyed under s 29(12) of the Act. The power to order a dog to be destroyed under s 29(12) was enlivened by the appellant’s conviction but the issue to be decided in exercise of the power raised a different question, namely the safety of the public. Following a hearing by the panel it was decided that the dog should be destroyed. The decision was made by a delegate who was a member of the panel (not Ms Hughes), not by the panel itself. However, Ms Hughes was a member of the panel and participated in its decision‑making process.
The decision was challenged on a number of grounds. Relevantly, it was argued that it was “incompatible” for Ms Hughes to be involved both in the laying of the charges and sitting on the panel. It was contended that she had a “personal interest” in the outcome of the panel hearing.
This challenge was rejected by the lower courts. The High Court, however, disagreed. The plurality held that “whether a fair‑minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made”: at . The High Court found that Ms Hughes had a personal interest in the outcome of the panel decision, being a decision akin to a penalty proceeding following a conviction.
Ms Hughes’ “personal interest” while not the same interest as a decision‑maker who might receive some benefit from the decision, was sufficient to suggest Ms Hughes could not bring the requisite impartiality to decision‑making. It is true that incompatibility usually arises where pecuniary interests are at stake. However, Ms Hughes’ interest was similar to the interest of a prosecutor in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed. Moreover, she was an active participant in the panel process providing it with evidence and other material relevant to the panel’s determination.
Accordingly, the High Court held that Ms Hughes’ involvement at the prosecution stage and her significant involvement in the panel process pointed to a conflict of interest and the possibility of deviation from proper decision‑making. This was so notwithstanding that the decision was made by a panel member (who was not Ms Hughes), not by the panel itself.