A Reasonably Reasonable Apprehension of Bias: CNY17 v Minister for Immigration and Border Protection

Abstract

In CNY17 v Minister for Immigration and Border Protection, the High Court of Australia will consider the test for apprehended bias. The current test was adopted in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and has long been taken to involve two steps. The first requires those claiming bias to identify the claimed source of bias. The second step is to explain how that influence will affect the impartiality of a decision-maker. Despite the apparent simplicity of this test, claims of apprehended bias remain impressionistic and difficult to judge. Whether an apprehension of bias is reasonable is a contextual question that can easily yield contestable judgments. Justice Gageler has suggested that Ebner requires a third step, which asks whether an apprehension of bias is reasonable in all the circumstances. This Before the High Court column argues that third possible step would add only confusion to the test for apprehended bias. It also explains how similar problems can arise if courts apply the Ebner test by assuming an unrealistic knowledge of relevant legislation when determining the reasonableness of any apprehension of bias.