Livori, Jackson; Yous, Harry --- "Hats Off to Impartiality? Apprehended Bias in Ministerial Decision-Making in the Barngarla Radioactive Waste Facility Decision" [2024] JCULawRw 9; (2024) 30 James Cook University Law Review 143

	Home \| Databases \| WorldLII \| Search \| Feedback James Cook University Law Review

Hats Off to Impartiality? Apprehended Bias in Ministerial Decision-Making in the Barngarla Radioactive Waste Facility Decision

Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources (‘Barngarla’) centres around a decision by the Federal Minister for Resources in November 2021 to declare Napandee, South Australia as the site for a radioactive waste facility.^[1] The Barngarla Determination Aboriginal Corporation (‘BDAC’) appealed the administrative decision on the grounds of apprehended bias, legal unreasonableness, and alleged errors of law. Of these grounds, only apprehended bias was found to be sufficiently established, resulting in the decision being set aside by Charlesworth J.

While all of the grounds of appeal are discussed in Parts IV and V, the focus of this case note is on the ground of apprehended bias as that was the only successful ground of appeal.

The Barngarla decision has obvious practical implications in that a new decision will have to be made as to the location of a future Australian radioactive waste facility. From a legal perspective, the decision raises interesting questions as to what will constitute apprehended bias for ministerial decision-makers.

The decision by the Minister for Resources to declare Napandee as the site for a radioactive waste facility was made under powers conferred by the National Radioactive Waste Management Act 2012 (Cth) (‘NRWM Act’). There are specific processes outlined in the NRWM Act that need to be followed for the decision to be properly made. The process begins with the responsible Minister making a declaration under s 6 for submissions of potential sites under s 7. This process requires the procedural fairness requirements in s 10 to be followed.

To make a declaration of the final site for the radioactive waste facility under s 14, the procedural fairness obligations in s 18 must be followed. When a s 14 declaration is made, all rights or interests in the site are either acquired by the Commonwealth or extinguished,^[2] and a range of conduct and activities in relation to the site become permissible.^[3]

The s 18 procedural fairness requirements relate to the contents of the notice the Minister must give before making a final declaration. Further, s 18(3) of the NRWM Act dictates the Minister must consider ‘any relevant comments given to the Minister, by a nominator of the land, or a person with a right or interest in the land, in response to the invitation [for comments on the notice] referred to in paragraph (2)(c) or (d)’.

The facts of this case are extensive and they all relate to the consultation and decision-making process to select Napandee as the location for the radioactive waste facility, or discussion about amending the NRWM Act to avoid a declaration under s 14 being a reviewable administrative decision. A chronology summarising the relevant facts can be found below.

Given the time span of events, the responsible department for the radioactive waste facility changed throughout this process. Any reference to the ‘Department’ refers to the responsible department for the radioactive waste facility at the time unless otherwise specified.

Date	Event	Page and Paragraph of Judgment
8 September 2014	Minister MacFarlane gave notice he proposed to make a declaration under s 6.	62 [54]
12 December 2014	Minister MacFarlane made a declaration under s 6 of the NRWM Act allowing nominations to be made under s 7 of the NRWM Act.	62–3 [55]
28 November 2015	28 nominations had been declared — this did not yet include the nomination of Napandee.	63 [55]
2 February 2017	Minister Canavan announced two further sites to be shortlisted, namely Napandee and Lyndhurst, ‘subject to a comprehensive analysis’.	63 [59]
20 March 2017	Minister Canavan announced the 90-day consultation for the Napandee and Lyndhurst sites.	63 [60]
August 2017	The Department contacted the applicant’s legal representatives providing an opportunity to discuss heritage aspects of sites nominated near Kimba and provided funding for some Barngarla representatives to participate in the Barngarla Heritage Group.	63 [63]
February 2018	The BDAC’s legal representatives wrote to the Department’s Taskforce advising Dr Dee Gorring was completing a cultural survey of the Kimba area and Dr Gorring was requesting access to the Napandee and Lyndhurst sites. The Department responded it did not have the power to facilitate same.	63–4 [64]
31 July 2019	Minister Canavan received a memorandum proposing to amend the NRWM Act.	64–5 [69]
4 September 2019	A representative of the Department Taskforce wrote to a director of the BDAC acknowledging ‘cultural heritage knowledge’ and the connection of the Barngarla People to the area.	65 [71]
17 October 2019	Minister Canavan received a further memorandum about amendment to the NRWM Act.	65 [73]
31 October 2019	Minister Canavan requested a brief about amending the NRWM Act to avoid a s 14 decision being a reviewable administrative decision.	65–6 [75]
4 November 2019	Memo from the Department to Minister Canavan regarding legislative amendments.	66–7 [76]
8 November 2019	Correspondence from Minister Canavan to the Prime Minister regarding legislative amendments to the NRWM Act.	66 [76]
11 November 2019	Minister Canavan made public statements on radio discussing the ballot results, stating no deal had been made, and the potential amendments to the NRWM Act.	67 [79]
3 December 2019	Brief sent to Minister Canavan about proposed amendments to the NRWM Act.	67–8 [81]
12 December 2019	The BDAC wrote to Minister Canavan making submissions with respect of Napandee and Lyndhurst, including enclosing a copy of the Dr Gorring Report.	68 [82]
22 December 2019	Correspondence from the Department Taskforce to BDAC’s lawyers regarding letter on 12 December 2019.	68 [82]
8 January 2020	Draft Communities and Engagement Plan created relating to site specific legislation.	68 [83]
21 January 2020	Draft Communities and Engagement Plan produced which included a record that the Minister’s preferred site was Napandee, but no s 14(2) decision had been made.	69 [84]–[86]
Early 2020	Minister Canavan called Jason Bilney to notify Mr Bilney that he was going to declare Napandee as the site, which was publicly announced later that day or the next.	69 [87]
1 February 2020	Minister Canavan made a media release stating Napandee in Kimba had been identified to host Australia’s National Radioactive Waste Management Facility.	69–70 [89]
1 February 2020	The BDAC sought reasons for Minister Canavan’s decision.	70 [91]
2 February 2020	Minister Canavan was quoted in an article in The Advertiser advising the process had been followed.	70–1 [92]
6 February 2020	Minister Pitt succeeded Minister Canavan as the relevant Minister for the NRWM Act.	71 [93]
11 February 2020	Q and A document prepared for an upcoming media release of the NRWM Act amendment bill which included a response that Napandee would still be chosen if legislation did not pass but the existing framework would be used.	72–3 [97]
Undated but around this time	Media release for the introduction of a bill to replace the existing site nomination framework in the NRWM Act to make it easier to select Napandee as the site.	73 [98]
26 February 2020	Minister Pitt wrote to the BDAC stating a commitment to work ‘towards mutually beneficial outcomes’.	74 [99]
5 March 2020	The BDAC received a response to the request for reasons on 1 February 2020.	74 [100]
6 March 2020	A representative of the Department Taskforce met with the local Mayor of Kimba and the owner of Napandee to brief them on the National Radioactive Wate Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 (Cth) (‘Amendment Bill’).	74 [101]
12 March 2020	Correspondence from the Department Taskforce to the BDAC encouraging the BDAC’s input for the NRWM Act facility process.	74 [102]
April 2020	$2,000,000.00 allocated to communities around Wallerberdina ‘as part of the site selection process’.	74 [103]
9 May 2020	Minster Pitt received a brief to sign an attached letter to the BDAC’s solicitor noting the impact of the Amendment Bill was to replace the administrative site selection process and establish Napandee as site for the radioactive waste facility.	75 [104]
13 May 2020	A draft document was produced by the Department which confirmed Wallerberdina received $2,000,000.00 in grants in both 2018 and 2019 and that Kimba and Wallerberdina had shared in $8,000,000.00 in grants in the Community Benefit Program.	75 [105]
Undated but around this time	Draft Ministerial announcement created proposing reasons why Kimba was chosen.	75–6 [106]
11 June 2020	Minister Pitt made a media release confirming the Amendment Bill passed through House of Representatives.	76 [107]
19 June 2020	Correspondence from the Department Taskforce to the BDAC inviting discussions about the facility.	76 [108]
21 July 2020	Australian Radioactive Waste Agency (‘ARWA’) was established.	76 [109]
30 July 2020	Correspondence from the ARWA to the BDAC inviting engagement in discussions.	76 [110]
6 October 2020	Commonwealth budget published which included $37,300,000.00 to establish the ARWA and $66,300,000.00 for the facility.	76 [111]
30 October 2020	Minister Pitt was provided with a talking points document for his visit to Kimba which included a comment that Napandee would continue to be the site even if the Amendment Bill did not pass.	77 [113]
1 November 2020	Minister Pitt participated in a radio interview about the facility.	77 [114]
9 – 12 November 2020	Mr Bilney travelled to Canberra with Auntie Dawn Taylor and their legal representatives to have discussions with persons on all sides of politics. This included a meeting with Minister Pitt, where Pitt asked the Barngarla people to stop opposing the Amendment Bill because the waste facility would be at Napandee.	78 [117]
12 November 2020	Minister Pitt was quoted in an online article in The Advertiser about the need for the Amendment Bill to pass to be able to continue to provide nuclear medical treatment and certainty for the residents of Kimba.	78 [119]
13 November 2020	Unsigned and undated letter to members of the public was provided to Minister Pitt stating the Amendment Bill was introduced to deliver on commitments to the community of Kimba by specifying the site at Napandee was the site for the faculty.	78 [120]
13 November 2020	In a radio interview Minister Pitt noted his intention to put the Amendment Bill in the Senate.	78–9 [121]
16 November 2020	Minister Pitt posted on Facebook about the need to build a facility and to provide certainty to the residents of Kimba.	79 [122]
18 November 2020	Minister Pitt again posted on Facebook, this time stating the need to ‘deliver on its promises to the Kimba community’.	79 [123]
27 November 2020	Minister Pitt was proved with a talking points document related to legislation in the Senate. This again stated that if the Amendment Bill did not pass, they would remain committed to delivering the facility to Kimba.	80 [124]
27 November 2020	Minister Pitt participated in a radio interview about the Amendment Bill.	80 [125]
30 November 2020	Joint statement from Minister Pitt and Rowan Ramsey MP about how the facility would support Kimba and the need to pass the Amendment Bill to deliver on this.	80 [126]
18 December 2020	The Department put out a tender for engineering work for the schematic design for the facility.	80–1 [127]
31 January 2021	Letter from Minister Pitt to a member of the public about the Amendment Bill being introduced to deliver on the commitment to Kimba.	81 [128]
23 February 2021	Minister Pitt sent a letter to the Shadow Minister of Resources outlining changes to the amendments to the NRWM Act. These amendments would still allow for judicial review.	81 [129]
4 March 2021	The Department met with the Kimba Consultative Committee and the Kimba Economic Working Group. The site-specific concept design for the facility was due to be finalised in April 2021.	81 [130]
10 March 2021	The Department prepared another talking points document that stated the purpose of the Amendment Bill was to provide certainty to the Kimba community.	82 [131]
1 June 2021	Consultancy agreement between AECOM Australia Pty Ltd and the Department.	82 [132]
22 June 2021	Amendment Bill in revised form passed.	82 [133]
23 June 2021	The Department issued a media release that stated the Minister can now issue an intention to declare the preferred site as well as talking points about this stage of the site.	82 [134]
July 2021	The ARWA completed a Napandee Site Assessment Report using similar criteria to those used by Minister Canavan in an assessment on 21 January 2020. The ARWA report concluded Napandee was a satisfactory location for facility.	82 [136]
10 August 2021	A brief was prepared for Minister Pitt concerning giving notice under s 18 of NRWM Act.	83 [137]
11 August 2021	Minister Pitt gave notice he intended to make s 14(2) declaration in respect of Napandee.	83–4 [138]
21 October 2021	Draft cultural heritage report produced by AECOM received by the Department.	84 [139]
29 October, 9 November, 25 November, 26 November 2021	Minister Pitt received briefs relating to power conferred under s 14(2) of NRWM Act.	84 [140]
17 November 2021	Media release stating $2,000,000.00 in grants was available to support infrastructure projects and new services to drive economic and social benefits for Kimba and the surrounding region	84 [142]
26 November 2021	Declaration under s 14(2) of NRWM Act selected Napandee as the site for the facility.	84 [143]

1 The Law

The apprehended bias rule is derived from the requirements of natural justice.^[4] Absent express legislative intention, it is assumed that the legislature intends for natural justice principles to apply.^[5] This ‘is to ensure that power, whether it be judicial or quasi-judicial or executive, be exercised fairly, weighing the interests of the individual and the interests of society as a whole’.^[6] In addition, the apprehended bias rule promotes ‘public confidence in the integrity of administrative decision-making’ and maintains ‘institutional integrity’.^[7]

The general ‘test for apprehended bias is not in doubt’^[8] and ‘has often been repeated’.^[9] The test is whether ‘a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide’.^[10] The objective test was first noted in Webb v The Queen^[11] and subsequently refined into a two-step test in Ebner v Official Trustee in Bankruptcy (‘Ebner’).^[12] Matthew Groves notes Ebner marked the point where ‘[t]he bright lines of automatic disqualification were replaced with the haze of context.’^[13]

The High Court seemed to entertain the idea of bringing back an automatic disqualification test for finding apprehended bias in the context of incompatible roles in Isbester.^[14] However, the High Court recently clarified that the Ebner test remains unchanged, and Isbester simply represented a situation where little elaboration would be required when applying the two-step test.^[15]

The first step is to identify the interest or ‘what it is said [that] might lead a decision-maker to decide a case other than on its legal and factual merits’.^[16] The second step requires a ‘logical connection between that interest and the feared deviation from the course of deciding the case on its merits’.^[17]

The underlying question is: what does natural justice require? This differs depending on the circumstances of the case. Part of the context that can be considered when applying the test is the role of the decision-maker. Justice Callinan illustrated this in the context of ministerial decision-making through the analogy that a Minister wears ‘two hats, one as a member of the Federal Executive, and another as a person whom a power as a decision-maker is entrusted’.^[18] His Honour went on to explain the tensions between the roles of such a decision-maker:

As a Minister of State he will have a role and involvement in the formulation and implementation of government policy. That policy may be to seek to change existing laws, because, in his or the government’s opinion, those laws do not reflect government policy or they are not readily capable of application, or because they are being misapplied. One important and conventional means of effecting such a change is to draw public attention to the current operation of the existing laws. This is a legitimate public function of an elected member of the Executive. That he may have another role requiring him faithfully to give effect to the existing laws should not, and in my opinion, does not disable him from expressing dissatisfaction with, and advocating change to them.^[19]

The standard required of judicial decision-makers is higher than that of ministers, whose conduct needs to be considered ‘in the light of his or her political role’.^[20] A judge has the ‘security of tenure to ensure their independence and impartiality’ and is expected to be a neutral arbiter.^[21] A minister, on the other hand, ‘functions in the arena of public debate, political controversy, and democratic accountability’.^[22] In the context of ministerial decision-making, the wider societal interests involve maintenance of the Australian system of representative and responsible government as provided for by the Australian Constitution. When the minister is the person making the decision, they are acting in both their capacity as a minister ‘who is accountable to the Parliament and the electorate’^[23] and as an administrative decision-maker whose exercise of power is ‘subject to the rule of law, and the form of accountability which that entails’.^[24]

Dr Griffiths further argued that ‘most, if not all, statutory tasks conferred on ministers or councils are conferred precisely because they are elected representatives and expected to inject their views of the public interest’.^[25]

Another difference between judicial decision-making and ministerial decision-making is the ‘nature of proceedings’.^[26] A judicial proceeding is held in open court and is adversarial in nature. Ministerial decision-making often occurs over multiple stages.^[27] There may be circumstances where a minister will only make a decision after recommendations have been made and inquiries have been conducted. Griffiths relevantly notes that, in those circumstances, a minister has a ‘continuing relationship with a particular issue or particular person during the course of which they necessarily form views’.^[28] In fact, a minister ‘may have quite advanced views about the merits of a particular [decision] well before it falls for ultimate determination’.^[29] In Jia Legeng, Gleeson CJ and Gummow J held that:

decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. ... Natural justice does not require the absence of any predisposition.^[30]

2 The Fair-Minded Observer’s Knowledge in this Case

Justice Charlesworth noted things a fair-minded observer would consider in forming the view there was apprehended bias. These included:

3 Matters Not Giving Rise to an Apprehension of Bias

The statement by Minister Canavan on 1 February 2020 identifying Napandee as the site for the radioactive waste facility^[37] was not interpreted to be a decision under s 14(2) of the NRWM Act. This was not a statement about a statutory exercise of power but instead a statement about policy.^[38] The policy in question was the repeal of provisions conferring power and replacement provisions that provided for a specific outcome by force of statute.^[39]

The general statements by Minister Pitt advocating for legislative reform were made in his capacity as a minister and not about adhering to a proper course of decision-making.^[40]

The activities related to the design and feasibility of the Napandee site before the decision under s 14(2) was made — including the establishment of the Australian Radioactive Waste Agency,^[41] engagement of contractors^[42] and granting of money^[43] — were all related to a hope that the Amendment Bill would pass. Justice Charlesworth found that it was not unusual for a decision-maker to engage in activities of this nature before a declaration was made.^[44]

Additionally, Minister Pitt’s act of continual reference to the broad community support for the Napandee proposal but ultimately placing little emphasis on this in the final decision did not contribute to apprehended bias.^[45]

Finally, generalised statements about the need for a radioactive waste repository and the need for timeliness in completion of this project did not give rise to apprehended bias.^[46]

4 Matters Giving Rise to an Apprehension of Bias

Minister Pitt made various statements about the undesirable outcomes for the residents of Kimba if the Amendment Bill repealing s 14 of the NRWM Act did not pass.^[47] Justice Charlesworth found that these statements could reasonably be understood to mean Minister Pitt had already made up his mind about the selection of Napandee as the site. More specifically, Charlesworth J noted:

His statements demonstrated unswerving dedication to achieving a factual outcome for the benefit of those people in Kimba who favoured the facility being located at Napandee, whilst at the same time displaying a dismissive attitude to its key opponents, the Barngarla people.^[48]

Her Honour expanded on this finding by detailing the three features of the statements that could give rise to an apprehension of bias.

The first was the statements which suggested the Australian Government had already made a commitment to the residents of Kimba that the radioactive waste facility would be in Napandee.^[49] This was exemplified in the letters explaining the site-specific Amendment Bill to the public and the Facebook post on 18 November 2020 about delivering on promises to the Kimba community.^[50] While Minister Pitt did not state how, when and by whom the commitment or promise was made, this still would have led a fair-minded observer to consider Minister Pitt to be bound to a pre-made promise to the residents of Kimba.^[51] Justice Charlesworth considered these statements to be to the effect of a promise to have Napandee as the site for the radioactive waste facility, as opposed to a promise to advocate for the Amendment Bill to be passed.^[52]

The second was related to the statement by Minister Pitt to Jason Bilney (a native title holder) in November 2020 to stop opposing the Amendment Bill because the Government had already made the decision to situate the facility at Napandee.^[53] Justice Charlesworth found this statement was suggestive of an indication by Minister Pitt that the decision was irreversible, noting that Napandee would be the site for the facility and the passage of the Amendment Bill would facilitate this.^[54] While accepting this was a political statement, her Honour stated: ‘It is not the case that everything said in political discourse is irrelevant and must be ignored in determining whether an apprehension of bias affects the subsequent exercise of a statutory power.’^[55]

The third finding was related to statements made by Minister Pitt that ‘impliedly postulate what would occur if the Amendment Bill did not pass’.^[56] The specific statements referenced included: (1) statements discussing Kimba’s residents’ enjoyment of the benefits of the facility being constructed near the town;^[57] (2) talking points documents produced in February, October and November 2020 about what would happen if the Amendment Bill did not pass;^[58] and (3) various radio interview statements.^[59] Justice Charlesworth found that these statements conveyed the need for certainty for the residents of Kimba as against the interests of the Barngarla People. As such, the statements made extended beyond Minister Pitt’s role as a Minister and into his position as a statutory decision-maker.^[60]

Based on these findings, Charlesworth J upheld the ground of apprehended bias.^[61]

The applicants also alleged the decision by Minister Pitt was unreasonable because he considered the draft AECOM Report without giving the applicants an opportunity to respond or comment on it.^[62] Justice Charlesworth noted a court will not lightly interfere with the discretion involved in a minister’s decision-making power.^[63] In this case the choice not to put the report to the applicants was part of the freedom conferred by the NRWM Act itself.^[64] Additionally, there was nothing preventing BDAC from putting its own assessment of ‘the likelihood of there being tangible cultural heritage values in, around or under the site’ forward.^[65] Further, Charlesworth J found that Minister Pitt had fairly understood the adverse opinions in the AECOM Report were not based on a comprehensive analysis of the site.^[66] Consequently, ‘Pitt did not cut off on the enquiry as to whether there existed tangible cultural heritage values at Napandee and did not dismiss that possibility on the basis of anything contained in the Draft AECOM Report.’^[67]

Regarding the temporary storage of intermediate waste, the argument was dismissed as it inaccurately described the operation of the NRWM Act and the practical operation of the facility.^[70] The argument was found to invite impermissible inquiry into future administrative decisions about the decommission of one facility and establishment of another.^[71]

In regards to the second argument, Charlesworth J found there was no provision in the EPBC Act that mandated assessment of cultural heritage impacts as a pre-condition for granting approval of developments such as those proposed at Napandee.^[72] This was contrary to Minister Pitt’s understanding that this was a mandated requirement.^[73] However, any misstatement of the EPBC Act would be of little significance and would not have materially affected the outcome of the decision as Minister Pitt was within his power to impose a discretionary mandate on himself that this assessment was required, even though it was not required by statute.^[74]

Proceeding on the basis the above finding was incorrect, Justice Charlesworth found that the respondent’s preferred interpretation of the EBPC Act was correct and Minister Pitt had correctly construed the EBPC Act during the decision-making process.^[75] Her Honour found that even if the Minister had misconstrued the EBPC Act it would not have materially affected the outcome of the decision.^[76]

The applicants submitted one or both of ss 4A(3)(a) and 4A(3)(b) of the NRWM Act were ‘ultra vires the legislative power of the Commonwealth’.^[78] Flowing from this is an argument the Minister had misunderstood the scope of controlled material which could be stored in the facility, and ‘therefore asked himself the wrong question, relied upon irrelevant material, and proceeded upon a mistaken conclusion, including by way of error of law’.^[79] The two heads of power argued to support these sections were the external affairs power and the defence power.^[80]

The applicant’s argument under the external affairs head of power centred around the interpretation of the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (‘Joint Convention’).^[81] Essentially, the applicants argued the NRWM Act is inconsistent with the Joint Convention, as the Joint Convention also required the NRWM Act to comply with the International Convention on the Elimination of All Forms of Racial Discrimination.^[82]

Federal legislation purporting to implement a treaty obligation can be supported by the external affairs power if the treaty has sufficient specificity^[83] and the legislation is appropriate and adapted to fulfilling the treaty obligations.^[84]

In short, Charlesworth J found the Joint Convention satisfied the test of having sufficient specificity,^[85] and — noting that it is permissible for Commonwealth legislation to only partially implement a treaty obligation^[86] — the Australian legislation was appropriate and adapted to fulfilling Australia’s treaty obligations.^[87]

Justice Charlesworth made three notable points in interpreting the Joint Convention. The first was that it is permissible to store material to which the Joint Convention applies with material to which the Joint Convention does not apply.^[88] To the extent the NRWM Act authorises storage of material beyond the scope of the Joint Convention, it is supported by other heads of power, including the defence power.^[89]

The second was that the various asserted rights and obligations — which, to explain very briefly, all related to upholding and promoting various rights of Indigenous peoples^[90] — by the applicants are not customary international law.^[91] Her Honour further noted that even if the rights and obligations were customary international law they would not impact the proper interpretation of art 13 of the Joint Convention.^[92] The applicants did not adequately establish a connection between the subject matter of the asserted rights with the text of the Joint Convention.^[93]

Third, Charlesworth J rejected the submission that the Joint Convention imposes a specific regime and departing from this would render the NRWM Act unsupported by the external affairs power.^[94]

The primary issue under the defence head of power was that the amount of military radioactive waste that would be managed by the facility was very small.^[95] Charlesworth J found that despite this, the NRWM Act could be supported by the defence power as it ‘authorises the storage and management of material “generated as a result of activities that relate to the defence of Australia”’.^[96] While it was noted that the defence power alone could not support the NRWM Act given the small proportion of defence-related waste, Charlesworth J also noted the NRWM Act was supported by other heads of power.^[97]

Consequently, her Honour rejected all the constitutional grounds argued in this case.^[98]

Justice Charlesworth set aside the original decision under s 16 of the Administrative Decisions Judicial Review Act 1977 (Cth) for apprehended bias and ordered a separate hearing for costs.^[99]

The Barngarla decision has important practical and legal outcomes. First, briefly addressing the practical outcome of the case, Barngarla set aside the decision of the Minister to locate a radioactive waste facility in Napandee.^[100] The process to make that decision began in September 2014,^[101] was overseen by four different Ministers,^[102] and cost just under $10 million in government expenditure.^[103] The current Resources Minister, Madeline King, publicly stated the government would not appeal the decision and the facility would no longer be located at Napandee.^[104] This statement has resulted in conflicting opinions. Some were displeased, citing the majority approval vote by the residents of Kimba and the economic benefit as reasons the construction of the facility should have gone ahead.^[105] Others have celebrated it as a win for Indigenous Australians.^[106] However, it must be noted the Barngarla People’s native title rights in the area of Napandee remain extinguished,^[107] and the decision does not relate ‘to the operation of native title’.^[108]

From a legal perspective, the Barngarla decision expands on the standards of procedural fairness in the context of ministerial decision-making. More specifically, it adds to the factors that can contribute to creating an apprehension of bias in a ministerial decision and the distinction between a minister’s role as a politician and as a statutory decision-maker.

A The Appropriate Degree of Political Discourse Before a Ministerial Decision is Infected with Bias

As noted above in Part IV(A)(1), the test for bias in ministerial decision-making allows consideration for the multiple hats worn by ministers. However, there is a difference between predisposition due to a minister’s political role, which is allowed, and prejudgment in the sense of commitment ‘to a conclusion already formed as to be incapable of alteration, whatever evidence or argu[109]ts may be presented’,¹⁰⁹ which breaches the apprehended bias rule. In the words of the Barngarla judgment, a minister is allowed to ‘have previously formed strong views [but cannot] [110]e a foreclosed mind’.¹¹⁰ There is an apprehension of bias when there might be a fear ‘the same foreclosed mind so openly declared in the political process might infect that statutory decision-making process with respect to [111] very same question’.¹¹¹ Admittedly, in many cases the dividing line between what is considered a ‘predisposition’ and what is considered a ‘prejudgment’ may be difficult to draw. There may be many cases where reasonable minds will differ on whether a minister’s political discourse is considered to have crossed that line. Indeed, Barngarla has blurred this distinction further.

From Barngarla, it can be understood that not all political statements are disregarded when applying the apprehended bias test.^[112] A minister’s role in a representative and responsible government should not take precedence over their role as an administrative decision-maker and the limits that are placed upon that decision-making power.^[113]

In Barngarla, Charlesworth J held that general statements advocating for legislative reform to align with government policy are valid and are not taken into account in determining bias.^[114] The same can be said about preparatory activities ‘in expectation or hope that the Bill would pass’.^[115]

On the other hand, statements favouring the interests of one group and dismissing the interests of another group would be understood to be made in the capacity of an administrative decision-maker and would demonstrate an apprehension of bias.^[116] For example, the Minister in Barngarla essentially made a promise to the residents of Kimba that the decision would be made in their favour rather than ‘merely ... a promise to advocate for the Bill’.^[117] This is in the ‘context where the ... Bill was the preferred way but not the only way to achieve’^[118] the outcome promised.

Other statements that may give rise to an apprehension of bias include statements indicating there is nothing one can do to change the mind of the decision-maker about the decision made.^[119] For example, Minister Pitt told Mr Bilney ‘he should stop opposing the Bill because the government had’ made a decision.^[120]

Lastly, statements about how one group’s opposition would be disadvantageous to the interests of another can also lead to an apprehension of bias.^[121] The Minister had also made statements about how those in opposition would create uncertainty for the residents of Kimba through ‘endless rounds of court proceedings’.^[122] From these statements, Charlesworth J held that ‘[c]onsidered as a whole, the evidence discloses that Minister Pitt took sides in a divided community in a way that forcefully advocated for the people of Kimba’.^[123]

Jia Legeng is the seminal case for bias in the ministerial decision-making process and involved the cancellation of two visas by the responsible minister due to the visa-holders being of bad character. The responsible minister in that case made various statements on radio and in a letter to the Administrative Appeals Tribunal related to Jia Legeng’s visa. The effect of these statements was that the responsible minister considered Jia Legeng to be of bad character because of previous criminal offences and was seeking to cancel his visa. In a 4:1 majority, the High Court held that the responsible minister could not be apprehended to be biased when cancelling the visa of Jia Legeng.^[124]

The majority in Jia Legeng all noted the different standard required of ministerial decision makers compared to judicial decision makers.^[125] Chief Justice Gleeson and Justice Gummow placed a strong emphasis on this distinction in their finding there was no apprehended bias.^[126] Justice Hayne found that the responsible minister publicly expressing a view that past criminal conduct demonstrated someone was not of good character did not show prejudgment because it was a legitimate view under the relevant act.^[127] Justice Callinan’s view was similar. In His Honour’s view the responsible minister expressing a view that very strong countervailing considerations would be required to displace a prima facie position someone was not of good character did not show prejudgment.^[128] With that context, Callinan J found that the responsible minister’s statement of facts, statements on a radio broadcast and letter did not reveal actual or apprehended bias.^[129]

With respect to the majority in Jia Legeng, we agree with Charlesworth J when Her Honour wrote: ‘(t)he judgments in Jia are not so absolute. Each case must be considered in its proper factual and legal context.’^[130] One key factual difference between Jia Legang and Bargnarla was that Jia Legang involved the interpretation of ambiguous phrasing. The responsible minister did not show prejudgment by taking the view that a person could not be of ‘good character’ if they had previously committed criminal offences.^[131] This stands in contrast to Minister Pitt in Barngarla where there was no ambiguous legislation through which Minister Pitt could push policy agendas. The NRWM Act merely required Minister Pitt to ‘take into account any relevant comments given to the Minister, by a nominator of the land, or a person with a right or interest in the land’.^[132]

Justice Charlesworth’s view in Barngarla appears more aligned with the dissenting opinion of Kirby J in Jia Legeng. Justice Kirby placed a strong emphasis on the fact that the responsible minister’s comments were specifically directed towards the decision to revoke Jia Legeng’s visa.^[133] In a similar way, Charlesworth J emphasised the various responsible minister’s statements about bringing certainty to the residents of Kimba.^[134]

Further, Kirby J noted that the political aspect of the decision to cancel the visa of Jia Legeng could be considered in creating bias.^[135] His Honour believed ‘a reasonable bystander would ... conclude that it would take a super-human dispassion and objectivity for the Minister ... to confirm Mr Jia’s visa to remain in Australia’.^[136] In a similar way the statements of Minister Pitt that Charlesworth J took issue with related specifically to the predetermined decision to select Napandee as the site for the radioactive waste facility.

We agree with Kirby J’s analysis that the apprehended bias test should be a ‘general impression derived from the evidence, not a lawyer’s fine verbal analysis’.^[137] Going back to first principles, the test is whether ‘a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide’.^[138] Acknowledging the political role of a minister, it defies logic that a minister pushing a policy agenda that specifically relates to a decision does not give rise to an apprehension of an impartial mind; a minister will have a bias towards deciding in line with that policy agenda.^[139]

It is only fair ministers must make decisions in line with procedural fairness requirements, irrespective of their political role. We suggest Kirby J’s dissenting rationale in Jia Legeng perfectly illustrates why this should be the case:

If this Court does not adhere to these standards, Ministers, entrusted by Parliament with extremely important decisions seriously affecting the rights of individuals, will be at liberty to make remarks in public about such individuals and their applications and then solemnly proceed, as the repository of statutory power, to exercise the power adversely to such persons. It would be hard to conceive of a practice more likely to undermine public confidence in the independent and impartial decision-making of statutory decision-makers. Ministers, as statutory decision-makers, like other persons entrusted to decide the fate of individuals, must simply learn the rule of reticence. They must avoid the appearance and actuality of prejudgment.^[140]

Whereas the reasonable observer might quite easily accept that such a political office-holder has a large leeway for comment about matters of public policy or political philosophy, higher expectations are, in my view held in relation to a decision by such a person, pursuant to legislation, particular to an identified individual. In such a case, the Minister would be expected to decide the matter without invalidating predispositions or prejudgment. He or she would be required to do so solely by reference to the relevant facts of the case and by application of the applicable law. This is the price to be paid for reposing such power on Ministers.^[141]

Noting this was in the context of an individual’s rights, such sentiment is equally applicable to a decision impacting a larger, though still relatively finite, group of people as in the Barngarla decision.

While Charlesworth J’s decision in Barngarala is distinguishable from Jia Legang, we believe her Honour’s decision and Kirby J’s dissenting opinions reflect what should be the true nature of the apprehended bias test. Namely, broad political statements about policy will not give rise to apprehended bias, but a minister expressing views on the specific outcome of a decision — even if that is part of advocating for a policy mandate — can create an apprehension of bias invalidating a decision.

The outcome of Barngarla was to set aside the decision of Minister Pitt to declare Napandee as the site for a radioactive waste facility due to apprehended bias on the part of the Minister. While the law generally recognises the political and decision-making roles of a minister as separate, Charlesworth J found that statements in the political discourse can infect the impartiality of a decision. We are of the opinion that the judgment accurately reflects what the true nature of the apprehended bias test should be. This view finds support in Kirby J’s powerful dissent in Jia Legeng, where His Honour persuasively outlined the rationale as to why this should be the case. We suggest the distinction between political and decision-making hats of a ministerial decision-maker is a difficult concept to understand. A minister can wear as many hats as they like, but the mind sitting below those hats remains the same.

The Australia – United Kingdom – United States Partnership on the construction of nuclear powered submarines will likely necessitate a nuclear waste facility within Australia.^[142] Further, given the contest between renewable and non-renewable energy sources and the locations of the relevant facilities will remain the topic of debate in the political sphere for many years to come, we anticipate that many Napandee-type decisions may have to be made in the future. The minister responsible for such a portfolio will need to adopt a fine balancing act to ensure that their conduct in their political role can be compartmentalised from their statutory roles of the minister by the fair-minded observer.^[143] This may lead to some difficulties for future ministers wishing to use administrative decisions — such as the location of nuclear power facility^[144] — to push their policy agenda.^[145] One public mis-statement could taint a costly and lengthy process with apprehended bias and invalidate the decision. Until there is a ruling by intermediate appellate courts or the High Court, the balancing act required is to be guided by the decision of Barngarla.

Ultimately, while ministers should be afforded the freedom to speak freely of broad government policy, permitting public discussion about specific decisions is a step too far. Ministers hold a great deal of power when making decisions under statute and that power must be wielded fairly, including by avoiding any bias.

^&#6[1] LLB (Hons) (Adl); Associate to a Justice of the Supreme Court of Western Australia.

^[4] See, eg: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 73 [43] (Gleeson CJ and Hayne J); Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, 146 [23] (Kiefel, Bell, Keane and Nettle JJ) (‘Isbester’).

^[7] John Griffiths, ‘Apprehended Bias in Australian Administrative Law’ (2010) 38(3) Federal Law Review 353, 356.

^[8] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 135 [274] (Jagot J) (‘QYFM’).

^[10] Ibid 77 [37] (Kiefel CJ and Gageler J), 83 [67] (Gordon J), 135 [274] (Jagot J); Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (‘Ebner’).

^[12] Ebner (n 1010) 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Groves (n 11) 567.

^[15] QYFM (n 8) 77–8 [40] (Kiefel CJ and Gageler), 87 [83] (Gordon J), 128 [245] (Gleeson J), 141 [295] (Jagot J).

^[18] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 583 [244] (‘Jia Legeng’).

^[81] Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, opened for signature 29 September 1997, 2153 UNTS 303 (entered into force 18 June 2001).

^[82] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969). See also Barngarla (n 1121 [310].

^[83] Barngarla (n 1) 124 [325], citing Victoria v Commonwealth (1996) 187 CLR 416, 486 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

^[84] Barngarla (n 11) 124 [323], citing Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, 259 (Deane J) (‘Tasmanian Dam Case’).

^[103] Bethanie Alderson and Nicholas Ward, ‘Opponents of Nuclear Waste Facility March as One in Port Augusta to Protest’, ABC News (online, 17 October 2022) <https://www.abc.net.au/news/2022-10-17/opponents-of-nuclear-waste-facility-march-in-port-augusta/101541898>.

^[104] Madeleine King, ‘Statement on the National Radioactive Waste Management Facility’ (Media Release, 10 August 2023) <https://www.minister.industry.gov.au/ministers/king/media-releases/statement-national-radioactive-waste-management-facility>.

^[105] See: ‘Traditional Owners Win Legal Challenge to Stop Nuclear Waste Facility in Kimba’, ABC News (online, 18 July 2023) <https://www.abc.net.au/news/2023-07-18/federal-court-kimba-nuclear-waste-barngarla-decision/102613126> (‘Traditional Owners Win Legal Challenge’); Joseph Guenzler, ‘Court Rules in Favour of Barngala People, Preventing Nuclear Waste Facility in Kimba’, National Indigenous Times (online, 18 July 2023) <https://nit.com.au/18-07-2023/6853/court-rules-in-favour-of-barngala-people-preventing-nuclear-waste-facility-in-kimba>; Belinda Willis, ‘“Bias”: Court Dumps SA Nuclear Waste Site Decision’, InDaily (online, 18 July 2023) <https://indaily.com.au/news/2023/07/18/bias-court-dumps-sa-nuclear-waste-site-decision/>; Jessica Urwin, ‘No Time to Waste’, Inside Story (online, 18 August 2023) <https://insidestory.org.au/no-time-to-waste/>.

^[106] See: ‘Traditional Owners Win Legal Challenge’ (n 105); AAP, ‘Barngarla People Cheer After Halting SA Nuclear Waste Dump’, 9News (online, 18 July 2023) <https://www.9news.com.au/national/kimba-nuclear-waste-dump-site-canned-barngarla-people-appeal-federal-court-south-australia/b032f09a-dc27-4071-9a37-6e55749fdf55>; Willis (n 105).

^[109] Jia Legeng (n 18) 532 [72] (Gleeson CJ and Gummow J). See also Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 91–2 (Deane J), 100 (Gaudron and McHugh JJ).

^[124] Jia Legeng (n 18) 538–40 [97]–[105] (Gleeson CJ and Gummow J), 561 [176], 565–6 [188]–[192] (Hayne J), 591 [279] (Callinan J).

^[125] Ibid 539–40 [102]–[105] (Gleeson CJ and Gummow J), 561–2 [177]–[181] (Hayne J), 583 [244] (Callinan J).

^[131] See Jia Legeng (n 18) 565 [188]–[189] (Hayne J), 584 [247], 586 [250], 589 [270] (Callinan J).

^[142] See Department of Defence (Cth), ‘Agreement strengthens AUKUS submarine partnership’, (Media Release, 12 August 2024) <https://www.minister.defence.gov.au/media-releases/2024-08-12/ agreement-strengthens-aukus-submarine-partnership>.

^[144] See Jake Evans, ‘Coalition's plan to go nuclear puts five regions on the table as favoured locations for nuclear reactors’, ABC News (News Article, 5 Mar 2024) <https://www.abc.net.au/news/2024-03-05/coalition-nuclear-plan-identifies-retiring-coal-likely-sites/103545440>.

^[145] See also Jake Evans and Evelyn Manfield, “Coalition could push on with nuclear even if host communities oppose it, despite previous calls for 'consent', ABC News (News Article, 20 June 2024) < https://www.abc.net.au/news/2024-06-20/coalition-backs-away-from-nuclear-consent-community-call/103998784>.

James Cook University Law Review

Livori, Jackson; Yous, Harry --- "Hats Off to Impartiality? Apprehended Bias in Ministerial Decision-Making in the Barngarla Radioactive Waste Facility Decision" [2024] JCULawRw 9; (2024) 30 James Cook University Law Review 143

1 The Law

2 The Fair-Minded Observer’s Knowledge in this Case

3 Matters Not Giving Rise to an Apprehension of Bias

4 Matters Giving Rise to an Apprehension of Bias