Q11: BIAS

Q11: Will the decision-maker be seen to have an open mind?

Fairness requires decision-makers to approach issues with an open mind.  Decisions must be taken fairly, and seen to be taken fairly.

The rules against bias and predetermination prevent pre-judgement or conflicts of interest. Affected persons may require decision-makers who are perceived not to be neutral to stand aside.

Generally, a decision-maker must not have:
– a financial interest in the outcome of the decision;
– some relationship to a party or witness (unless disclosed and agreed to by the parties at the time);
– any personal prejudice or attitude toward a party or a party’s case;
– pre-determined the issue, by making up their mind before all the relevant information is available.

Direct or indirect financial (pecuniary) interest (e.g. where the financial interest of a family member is affected) will rule out a decision-maker.  It is very likely that any decision would not survive a challenge in these cases.

For non-pecuniary interests, the test for disqualification is whether a fair‑minded and informed lay observer would reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question. This does not mean, however, that a decision-maker cannot form or hold preliminary views. Ministers, for example, will hold views based on their experience or elected platform and do not need to empty their minds of these views – as long as they remain open to persuasion.

The type of decision also matters – for purely commercial or procurement decisions, for example, the Courts have accepted that decision-makers may bring strongly held or adverse views to the process.  What is required is honesty and a willingness to consider information which might change the view.

A party to a decision may also waive (or be deemed to have waived) its objection to a decision-maker who would otherwise be disqualified for bias.

The decision-maker must also not allow another person to have a decisive say in the matter, or on how to make the decision, or to ‘rubber stamp’ the decision of someone else.  If any of these things occur, the decision-maker may be said to have acted under dictation and the decision-making power would not have been properly exercised.

The decision-maker can consult with or receive advice from others – but must make the ultimate decision independently from other people.

The Problem Gambling Foundation of New Zealand, a disappointed participant to a procurement process to provide services to the Ministry of Health, challenged decisions made by the procurement process.  The Court of Appeal held that:
– the fact that it was a commercial procurement process provided the appropriate prima facie context for the Court (resulting in a less extensive level of scrutiny by the Court);
– in the circumstances a high standard of conflict of interest analogous to bad faith or corruption would be required (and this was not alleged); and
– the Government’s Rules of Sourcing did not create rights that could be enforceable by the Foundation.
Attorney-General v Problem Gambling Foundation of New Zealand [2016] 2 NZCA 609
Auckland Casino Limited, as an applicant for casino licence, should have raised its concerns about bias earlier in a process (when presented with an opportunity to do so).  The Casino argued that a decision to decline a licence was biased because some members of the licensing authority held shares in a competitor that had successfully gained a licence; and because the chair and deputy chair of the authority had personal connections with the competitor and were lawyers whose firm acted for the local authority in transactions associated with the grant of the completing licence.  The claims of bias failed. As Auckland Casino had known about these facts before the hearing but chose not to object, it had waived its ability to claim bias. (Note the strong commentary from the Court that it may have viewed the facts as successfully making out a case for bias, if not for the waiver.)
Auckland Casino Limited v Casino Control Authority [1995] 1 NZLR 142
Robust questioning by a member of the Casino Control Authority did not constitute bias.  Members of specialist tribunals were expected to have expertise and experience in the relevant area.
Riverside Casino Ltd v Moxon [2001] 2 NZLR 78
The reason that the test (that “a fair-minded lay observer might reasonably apprehend might not bring an impartial mind to the resolution of the question”) is objective is to avoid disqualification based on the mere assertion that they might be biased—the apprehension of bias must be both rational and reasonable.
Saxmere Company Ltd v Wool Board Disestablishment Co [2009] NZSC 122
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