Land and Environment Court New South Wales Medium Neutral Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2011] NSWLEC 147 Hearing dates: 26/08/2011 Decision date: 26 August 2011 Jurisdiction: Class 3 Before: Pepper J Decision: Application to disqualify Acting Commissioner upheld Catchwords: BIAS: whether a reasonable apprehension of bias existed in circumstances where counsel for one of the parties and the Acting Commissioner assisting the Court were engaged to produce a draft report - held that an apprehension did exist and the Acting Commissioner was disqualified ABORIGINAL: power of the Court to proceed hearing a Class 3 Aboriginal Land Rights Act 1983 appeal absent a Commissioner Legislation Cited: Aboriginal Land Rights Act 1983, s 36 Crown Lands Act 1989 Land and Environment Court Act 1979, s 37 Cases Cited: British American Tobacco Australia Services Ltd v Laurie [2011] HCA; (2011) 242 CLR 283 Ebner v Official Trustee in Bankruptcy [2011] HCA 63; 205 CLR 337 Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162 Category: Principal judgment Parties: NSW Aboriginal Land Council (Applicant) Minister Administering the Crown Lands Act (Respondent) Representation: Dr S E Pritchard (Applicant) Dr J G Renwick with Ms G E Wright (Respondent) Chalk & Fitzgerald (Applicant) NSW Crown Solicitor's Office (Respondent) File Number(s): 30124 of 2010 EX TEMPORE Judgment The Minister Makes an Application to Disqualify an Acting Commissioner 1This is an application made by the respondent, the Minister Administering the Crown Lands Act ("the Minister"), that Davis AC be disqualified from assisting the Court in respect of a Class 3 Aboriginal Land Rights appeal to be heard today. 2The basis for the application is that the Minister was advised this morning that Davis AC and Dr Sarah Pritchard, counsel for the NSW Aboriginal Land Council, the applicant in the proceedings, are involved in the production of a draft report, ultimately to be furnished to the Prime Minister, concerning whether or not there should be formal recognition of Aboriginal and Torres Strait Islander peoples in the Commonwealth Constitution. 3Acting Commissioner Davis is on the writing sub-committee of the Expert Panel on Constitutional Recognition of Indigenous Australians tasked with producing the draft report. Dr Pritchard has been engaged by the sub-committee to assist in the writing of the draft report. 4Dr Pritchard has properly and candidly informed the Court of the following facts, none of which were in dispute: (a) first, the consultation and drafting process has already commenced; (b) second, there will be many face to face meetings between herself and Davis AC in the course of the production of the draft report; (c) third, that there will be intensive email communications between herself and the sub-committee, and therefore, between herself and Davis AC; and (d) fifth, that there is a meeting in two weeks time in Sydney between herself and the sub-committee, at which Davis AC will be present. Applicable Legal Principles When an Allegation of Apprehended Bias is Made 5The test to be applied when determining an application of the present kind is that stated by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ (at [6] references omitted): 6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. 6What must be considered in the application of this principle to a given set of facts or circumstances is as follows ( Ebner at [8] references omitted): 8 The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 7These statements of relevant principle were recently confirmed by the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [37]-[39], [89] and [139]. 8These principles are no less applicable to Acting Commissioners of this Court ( Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162 at [27], [28] and [36]). The Application Must be Upheld 9The application is made on the basis of the fact of a close professional collaboration on an aspect of Aboriginal affairs in a Class 3 Aboriginal Land Rights matter pending judgment would, in all the circumstances, mean that a fair-minded lay observer might reasonably apprehend that the decision-maker, in this instance Davis AC, might not bring an impartial mind to the exercise of the function before her. 10Given the factual circumstances underpinning this application that were reinforced by the factual matters disclosed by Dr Pritchard, this apprehension is, in my opinion, very real. It is therefore appropriate to uphold the application and preclude Davis AC from assisting the Court in respect of this appeal. 11But this is not the end of the matter. The Court Has Power to Determine the Appeal Absent a Commissioner 12The parties consent to the matter proceeding absent a Commissioner. This is important because s 37(2) of the Land and Environment Court Act 1979, mandates as follows (emphasis added): (2) Notwithstanding subsection (1), where proceedings are pending in Class 3 of the Court's jurisdiction, being proceedings: (a) arising under the Aboriginal Land Rights Act 1983 , and (b) other than of a kind specified in Schedule 2, the Court shall, in hearing the proceedings or any part of the proceedings, be assisted by 2 Commissioners or, if the Chief Judge so directs, by one Commissioner. 13A question therefore arises as to whether, given the consent of both parties that the matter could proceed today absent the assistance of a Commissioner, the Court nevertheless has the power to proceed. This is because of the wording of s 37(4) which states that (emphasis added): (4) A Judge before whom proceedings referred to in subsection (1) or (2) are pending may commence or continue the hearing of the proceedings, or any part of the proceedings: (a) without the assistance of a Commissioner who is not available or has ceased to be available to assist in the hearing of the proceedings or part of the proceedings, and (b) without the assistance of Commissioners generally if, in the opinion of the Judge, the proceedings or part of the proceedings concern or concerns a question of law only . 14It is apparent from a proper construction of s 37(4) that both the criteria in sub-paragraphs (4)(a) and (b) must be satisfied before the Court can continue to hear a Class 3 appeal under the Aboriginal Land Rights Act 1983 absent a Commissioner. 15Turning first to sub-paragraph (a), I find that by reason of her disqualification Davis AC has "ceased to be available" to assist the Court in the hearing. Accordingly, that subparagraph is satisfied. 16In respect of sub-paragraph (b), Dr James Renwick informed the Court that there would be some matters of fact put before the Court during the hearing of the appeal. These matters were contained in an affidavit yet to be read of Mr Thomas Powell, sworn 21 June 2011, and also comprised documents contained in the Minister's proposed tender bundle. 17However, Dr Renwick also submitted that none of these factual matters were in contest and that, in truth, the proceedings essentially concerned questions of law, inter-alia: (a) whether the Minister has the power to grant a licence for grazing over land reserved from sale for public buildings, and if so, whether that licence had been validly granted; and (b) if the answer to the latter question is "no", whether non-compliance with the Crown Lands Act 1989 means that the use or occupation of the land is not lawful for the purposes of s 36(1)(b) of the Aboriginal Land Rights Act 1983. 18Notwithstanding that limited factual findings will necessarily be required to be made by the Court, I am nevertheless of the opinion that, at the very least, "part of the proceedings concern a question of law only", and therefore, subparagraph (b) is also met. Conclusion 19The Court therefore has power to proceed to hear the case today absent the assistance of Davis AC. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2011