Hot Holdings Pty Ltd v Creasy & Ors P58/2001 [2002] HCATrans 167 (16 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P58 of 2001

B e t w e e n -

HOT HOLDINGS PTY LTD

Appellant

and

MARK GARETH CREASY, ARIMCO MINING PTY LTD (LIQUIDATOR APPOINTED) and ORESEARCH NL

First Respondents

MINISTER FOR MINES

Second Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 16 APRIL 2002, AT 10.19 AM

Copyright in the High Court of Australia

MR M.J. BUSS, QC: May it please your Honours, with my learned friend, MR C.G. COLVIN, SC, I appear for the appellant. (instructed by Lawton Gillon)

MR M.J. McCUSKER, QC: May it please your Honours, with my learned friend, MR C.P. STEVENSON, I appear for the first-named first respondent, Mr Creasy. (instructed by Mallesons Stephen Jaques)

MR G.T.W. TANNIN: May it please, your Honour, with my learned friend, MS J.C. PRITCHARD, I appear for the second respondent. (instructed by the Crown Solicitor for the State of Western Australia)

GLEESON CJ: There is a certificate from the Deputy Registrar to the effect that she has received a notice from the solicitors for the second-named first respondent, Arimco Mining Pty Ltd, that the second-named first respondent submits to the order of the Court save as to costs and there is also a certificate from the Deputy Registrar that she has received notice from the solicitors for the third-named first respondent, Oresearch NL, that the third-named first respondent will abide the decision of the Court save for any orders as to costs. Yes, Mr Buss.

MR BUSS: Thank you, your Honour. Your Honours, we move for leave to amend our notice of appeal in accordance - - -

GLEESON CJ: Is that opposed, Mr McCusker?

MR McCUSKER: No, your Honour.

GLEESON CJ: Yes, you have that leave.

MR BUSS: Thank you, your Honour. Your Honours, there are two critical issues in the appeal. First, what is the test for apprehended bias in relation to ministerial decision making where the allegation relates to a pecuniary interest held not by the Minister but by a person who is involved in the process by which a non-binding recommendation is made to the Minister. Secondly, what objective facts are to be imputed to the fair-minded person for the purpose of being taken into account in applying the test?

HAYNE J: That seems to begin the inquiry with a few assumptions made, assumptions which may themselves be contestable. You begin by saying, "What is the test?", who are you applying it to? There is a package of ideas which I think needs to be unpacked because a way of looking at this may be that an adviser to a decision-maker, the nature of the relationship, as adviser itself being contested, is arguably biased through interest. What does that matter when the decision-maker is the Minister.

MR BUSS: Yes.

HAYNE J: Now, if you start the inquiry, "What is the test?", what assumptions have you made?

MR BUSS: Well, your Honour, as you will have seen from our written submissions, we have endeavoured to formulate a test specifically in relation to the holding of a pecuniary interest. We have not endeavoured - - -

HAYNE J: But it is a pecuniary interest held by someone who is in a position where they may, they may not - let us leave aside that issue for the moment - they may, they may not, have tendered advice to a decision-maker. Now, what is the field of discourse in which we are debating? We are not in a court.

MR BUSS: No, we are not in a court, and that, in our submission, is relevant to formulating the test by reference to a hypothetical fair-minded person who is informed as to the material facts, rather than - - -

GLEESON CJ: But what is it a test of? The test of what?

MR BUSS: It is a test as to whether a person with those attributes might reasonably apprehend that the ultimate decision-maker, the Minister, might not bring an independent and impartial mind to bear on the question; and he or she might not do that because the person with an interest has had the capacity to influence, and might reasonably be suspected of having influenced, the Minister's decision.

GLEESON CJ: But are we examining apprehension of bias of a person, or apprehension of bias of a process?

MR BUSS: We are examining, in this instance, apprehension of bias of a person, namely - - -

GLEESON CJ: The person being the Minister?

MR BUSS: The person being the Minister.

HAYNE J: And the premise for the debate you have just had with the Chief Justice appeared to be that the Minister began, at least, with no view, but received a submission from someone who had a pecuniary interest, just as the Minister may have received a submission from someone very directly interested, namely, the person who wanted the relevant interest.

MR BUSS: That is true, your Honour, the Minister no doubt did start without any views in relation to the matter at all and he then received a number of expressions of view, in particular from the Warden, in discharge of the Warden's statutory function, from the parties who were each urging that there be a grant of a mining tenement to them in preference to the other party, and then of course the minute that was signed by the Director-General of the Department and it is, in our respectful submission, not helpful to refer to someone such as Miasi as an adviser because what is important is to what extent, if at all, did Miasi give any advice. If he gave any advice, which we say he did not, could that reasonably be anticipated by a fair-minded person fully informed as to the facts as being capable of influencing the Minister's decision in a way that was to the advantage of Miasi?

HAYNE J: But let us take it away from the facts of this case and assume a public servant accepts a bribe to make a recommendation to the Minister that the Minister should grant the interest concerned to the donor of the bribe. What is the test that we are to apply and who are we focusing the test on?

MR BUSS: In our submission, the broad test to be applied is whether the hypothetical fair-minded and informed person might reasonably suspect that the Minister might not bring a fair and impartial mind to bear. That, in our submission, remains the test and the area for factual inquiry then becomes, accepted that a public servant accepted a bribe to procure a particular result, what involvement did that public servant have in the procedure which culminated in the Minister making a decision?

GAUDRON J: The other thing may well be that what a hypothetical fair-minded person might think might well be different in the case of a bribe than in the case of somebody who, acting on instructions from his superior officers, merely prepares a minute or participates in the preparation of a minute.

MR BUSS: Yes, that is true, in our respectful - - -

GLEESON CJ: And there is a very practical reason for that. People do not usually give bribes unless they think they get value.

MR BUSS: Indeed.

GLEESON CJ: So the very fact that somebody has bribed a public servant is evidence of the influence of the public servant, but it might be different in a case of the kind that Justice Gaudron put to you.

MR BUSS: Yes, indeed. There are a variety of different factual permutations of course, your Honour. The person who pays the bribe may believe that the person does have the capacity to deliver the particular benefit that is being sought but there may be some mistaken view about that or some circumstances may intervene which prevents that happening.

GLEESON CJ: Mr Buss, can I ask you a question about the facts, and the way this process works?

MR BUSS: Yes.

GLEESON CJ: The proceedings before the Mining Warden were conducted in public, were they?

MR BUSS: They were conducted in public, yes, your Honour.

GLEESON CJ: And the Mining Warden, pursuant to a statutory obligation, made a recommendation to the Minister.

MR BUSS: That is correct.

GLEESON CJ: Was that recommendation made public?

MR BUSS: Yes it was made public, your Honour.

GLEESON CJ: And were reasons given for the recommendation?

MR BUSS: Reasons were given for the recommendation.

GLEESON CJ: So under the statute, in a public process, the Mining Warden heard the competing arguments of the claimants, made a recommendation to the Minister to grant the mining title to your client.

MR BUSS: Correct.

GLEESON CJ: And published reasons for that recommendation.

MR BUSS: That is right. There was a hearing in open court, and reasons were published.

GLEESON CJ: Now, under the statute, the next statutory step was for the Minister to make a decision and the statute expressly provided that the Minister could or could not make a decision in accordance with the recommendation.

MR BUSS: That is correct.

GLEESON CJ: Now, to use this word that has been used in your argument and the judgments, "involvement": under the statute is there any provision for any of these public servants to be involved in the decision-making process?

MR BUSS: No, there is not, your Honour.

GLEESON CJ: Where do they get into the Act?

MR BUSS: They get into the Act in this way, that under the Act there is provision for the Minister, who is a corporation sole, to be responsible for the administration of the Act. Section 10(1) says:

This Act shall be administered by the Minister -

who was -

a corporation sole -

and in section 11 of the Act, it is provided:

There shall be a department of the Public Service of the State to assist the Minister in the administration of this Act -

So if the words "the administration of this Act" are broad enough to contemplate that a non-binding minute might be prepared and delivered to the Minister, together with the department assembling the various submissions and organising the papers, which then pass under the hand of the chief executive officer of the department, which is Mr Ranford, the Director of Mines, the matters are then submitted to the Minister.

GLEESON CJ: Now does the Minister give any reasons for his decision?

MR BUSS: There is no statutory obligation for him to do so, although he did do so in this instance in a letter that he wrote; he did give some reasons as to why he determined the grant to my client. I should also mention, your Honour, that as regards the Warden's recommendation, this Court of course held in Hot Holdings [No 1] that the Minister was obliged to take the Warden's recommendation into account and that is the reason that certiorari lay in relation to the Warden's recommendation.

GLEESON CJ: Now, the Minister in the present case, as a matter of departmental procedure or convenience, chose to have officers of the department examine the matter before it came to him for decision and chose to have them make a recommendation to him about what he should do. Is that right?

MR BUSS: I do not think there is any evidence that the Minister chose that.

GLEESON CJ: Well did he have any statutory obligation to do that?

MR BUSS: No, he did not, but that was the procedure that was followed and appears typical.

GLEESON CJ: That is right, that is why I said as a matter of convenience.

MR BUSS: Yes.

GLEESON CJ: As far as the provisions of the statute were concerned, he could simply have taken in hand directly the Warden's recommendation and excluded from any "involvement" in the process any of his departmental officers.

MR BUSS: That is true, your Honour. Indeed, on our submission, this is a decision which the Minister, on a proper construction of the statute, must make himself or herself and which cannot be delegated except pursuant to the express power of delegation, but the Minister could indeed have done that, your Honour, that is correct.

Now, I mentioned the test that we have suggested, being by reference to a hypothetical fair-minded and informed person who might reasonably apprehend that the Minister might not bring an independent and impartial mind to bear.

GUMMOW J: Yes, but this person has to understand this administrative structure so as to understand the Act - the public service legislation - how it all works.

MR BUSS: Yes. Of course, it is not possible, in our respectful submission, to state the test more specifically than that and no doubt the area of operation of the test will differ in relation to other aspects of apprehended bias, for example, where it is suggested that there has been prejudgment by the Minister. The starting point must always be the statute which confers the power on the statutory decision-maker so that it may be apparent from the express or implied terms of the statute that the Minister or other decision-maker may in fact prejudge a matter to the extent that he or she adopts a particular policy or has formulated particular views.

There may be political aspects to all. Indeed, there may be circumstances where the statute contemplates that someone may have a financial interest in the outcome of the matter that they are to decide. One might think, for example, by reference to local authorities, or the like, where they are called upon to make a particular decision and they may, as a collegiate body - not personally but as an entity responsible for the administration of a local government district - have some interest in the outcome.

GLEESON CJ: May I ask you one other question only of a practical nature?

MR BUSS: Certainly.

GLEESON CJ: The decision of the Minister was quashed by the Supreme Court of Western Australia.

MR BUSS: Yes, that is correct.

GLEESON CJ: What is supposed to happen next?

MR BUSS: What would happen next is that the matter, as we apprehend it, would go back to the Minister for redetermination, according to law.

GLEESON CJ: And they would leave Mr Miasi out of a loop, this time?

MR BUSS: One would hope so. I might also mention that there has been a change of government and there is now a new Minister for Mines under the present government, so, there will be a new Minister who would consider the matter and if a similar procedure was followed, in terms of the preparation of a minute signed under the hand of the chief executive officer, one would have thought that there would be different people within the department who would compile that.

GLEESON CJ: Thank you.

HAYNE J: And, in doing that, may the Minister choose to seek to the views of persons who are financially interested in the outcome?

MR BUSS: He may seek submissions from the parties that are before the court. Beyond that, in terms of seeking submissions from people who are not parties, he could seek submissions from them but he would be obliged to give those submissions to each of the parties and enable them to have an opportunity comment upon them. It is difficult to be more specific, your Honour, in the abstract, in terms of thinking what other person might have a financial interest in the outcome, but in principle there are no express constraints upon what matters the Minister may take into account in determining to whom to grant a policy.

He may take into account matters of public policy in terms of the development of mineral resources within the State, so our answer to your question would be, yes, in principle he could do so although according procedural fairness to the parties who are applicants for tenements over that ground.

KIRBY J: Normally, one would assume that a Crown officer who was giving advice to the Minister did not have any undisclosed personal interest, undisclosed to the Minister or undisclosed to the parties. That is just an assumption of Crown service.

MR BUSS: Indeed. One would normally be entitled to make that assumption, and that is what one would normally expect.

CALLINAN J: Mr Buss, if that is not the case, is there a natural justice point involved, in this sense: that the parties who would suffer as a result of the acceptance of the advice of a person who is financially interested - should they not, on one view, be given an opportunity to deal with the submission by such a person, on the basis that it would be prejudicial to them in a particular sense, in that it might be affected by bias?

MR BUSS: That is true, if there was a person who did have a direct pecuniary interest in the outcome and who had made a submission, but that, of course, is not this case. Miasi - although our learned friends for Mr Creasy refer in some of their written material to Mr Miasi being an adviser to the Minister - and he may well be, in some circumstances - but in this instance, he was not, relevantly, an adviser. The evidence as found by the learned trial judge was that Miasi was present when Phillips and Burton determined that there was no reason why the departmental minute should be different from the recommendation of the Warden, and thereafter he was instructed to prepare a minute reflecting that, which he did by hand, and which then came into the hands of another public servant, Mr Hicks. So in our respectful submission, it would be wrong to regard Miasi, on the facts of this case, as, in any sense, an adviser to the Minister.

GLEESON CJ: Well, at page 251, on the top of the page, the Full Court held that the fact that:

Miasi did not play any part in forming the decision of Messrs Burton and Phillips -

was irrelevant.

MR BUSS: Yes. Well, that is a finding that we challenge, as to its relevance. That is, we contest the finding of the Full Court that the fact that Miasi did not play a role was irrelevant.

GAUDRON J: There are two aspects, though, Mr Buss. Firstly, they said: did not play any role in "forming the decision" of the Minister - or forming the decision of the people who were his advisers. That is one thing. Further down, the gravamen seems to be:

The Minister's decision is infected, even though he acted unwittingly on this tainted advice.

It seems to me, there are a number of issues involved in that. Was it advice? Was it tainted? Did the Minister act on it? I would have thought there are a very considerable number of assumptions in that question.

MR BUSS: Yes, there are - - -

GAUDRON J: If you apply the test that you have asserted - the reasonable, fair-minded person, knowing the facts - or, at least, knowing the operation of the Act and, one assumes, the way in which the public service generally operates - would apprehend. It seems to me that the factual findings put Mr Miasi more in the case of a record-keeper and record-maker, than an adviser.

MR BUSS: Yes, in our submission. Your Honours, a number of these points are really able, perhaps best, to be teased out if I turn to address the second critical issue in the appeal as we submit, namely, the extent to which the objective facts relating to the decision-making process may be taken into account in applying the test for apprehended bias.

HAYNE J: Before you go to that - I am sorry to delay you, but it does seem to me that by going to it again, you make assumptions that need to be tested. Let it be assumed that the Minister receives a note from a public servant, "It is good for the State that this interest be given to A. The reasons it is good for the State are reasons 1 to 12." Let it be further assumed that the public servant who gives that advice gives it in pursuit of personal financial interest. So what? Unless it is said that the Minister does not bring to bear a mind which assesses the question, "Is it good for the State?", what does it matter if the Minister is given a piece of paper formed in a particular way as the result of the pursuit of personal interest?

MR BUSS: It does not matter a thing, your Honour, unless the material objective facts disclose that there is reasonable basis for suspicion that the advice that was given by the public servant influenced the Minister and that in terms involves also - - -

HAYNE J: Let it be assumed that the Minister writes on the foot of the note, "Yes, these reasons are perfectly sound. I accept them in their entirety." Again, what does it matter if the motivation for the public servant is financial gain, if the Minister brings to bear the independent mind?

MR BUSS: If the Minister does bring to bear the independent mind, there would be nothing wrong with that. The only - - -

HAYNE J: Is that not the problem? Is that not what we all learn by watching "Yes Minister" and "Yes Prime Minister", and if we did not know it before, we know it since that if you put the poison in the well it can affect the Minister's decision and it will not be a truly independent mind or a truly independent decision because the Minister's decision will be warped or may be warped by the way in which a case is presented by a person who is biased and that is the evil.

CALLINAN J: Yes, and the underlying expectation and assumption by everybody would be that public servants would be giving independent advice uninfected by personal considerations. You see, it is recognised by Lord Reid in Ridge v Baldwin, page 72:

a minister cannot do everything for himself. His officers will have to gather and sift all the facts, including objections by individuals, and no individual can complain if the ordinary accepted methods of carrying on public business do not give him as good protection -

Now, an "ordinary accepted" manner of carrying on public business would not involve the giving of advice infected by personal gain, I would have thought, as Justice Kirby just suggested to you.

MR BUSS: No doubt that is - - -

CALLINAN J: It may not be this case, but I do not think you can make the general proposition.

MR BUSS: We do not make that as a general proposition that there is nothing wrong with - - -

CALLINAN J: Would not everybody's expectation be that officials who are advising Ministers would be uninfected, or should be uninfected, in their advice - - -

KIRBY J: Or if they do have an affectation, that they would not take part, or if they had to take part, that they would disclose fully that advice to the decision-maker.

MR BUSS: As a general principle, no doubt that would be the view that would be taken by the hypothetical fair-minded person.

GLEESON CJ: Mr Buss, I am wondering if you are not being offered for your consideration and comment the proposition that to deal with this problem under the rubric of reasonable apprehension of bias on the part of the Minister is an inappropriate way of attacking the problem and that if you look at it as a question of reasonable apprehension of bias on the part of the Minister, that takes you nowhere, but if you looked at it on the question of corruption of the process because of the personal interest of Mr Miasi, then it would be wrong to say it is irrelevant to ask what role Mr Miasi had in the process. That is a possible way of looking at it from your point of view.

MR BUSS: Yes. Indeed, if one were to look at the nature of the process, it is our submission that the process and whether it has been corrupted is necessarily something which must be examined on the way to determining the ultimate issue in the case, which is whether the Minister's decision should stand or not.

GLEESON CJ: But a possible point of view that would, I would have thought, assist your argument is that the more you get away from the question of concentrating on whether the Minister was biased, or appeared to be biased, to the question of whether the process was corrupted, the more difficult it would be to sustain the view expressed on the top of page 251, that is that it was irrelevant to ask what Mr Miasi had to do with this decision.

MR BUSS: Yes, indeed, your Honour. We can, with respect, see the force of that point of view. It has the advantage, we would submit, that it deals with the structure within the bureaucracy which is responsible for, in various circumstances, providing advice to the Minister. If that were to be separately analysed to see whether that process had been corrupted, then if the answer to that question was that there was no reasonable basis for forming that view, then that would then leave the case on the basis of the finding that was made by the trial judge that there was no evidence that the Minister had merely rubber-stamped what was put up to him. So there would be two separate aspects to it. There would be a finding favourable to our client, we would submit, in relation to the non-corruption of the process leading to the matter coming before the Minister, and the finding of the learned trial judge that the Minister had not rubber-stamped but had properly applied his mind over several hours and in the course of that had taken advice from people who on no view had an interest, advice from Burton and from the Crown Solicitor.

GUMMOW J: It goes back further than that though, does it not?

MR BUSS: I am sorry, your Honour?

GUMMOW J: Look at page 241, line 29 to 30:

Heenan J said that the evidence available before him showed that Mr Miasi did not play any part in forming the decision of Messrs Burton and Phillips that the draft minute should support the warden's recommendation.

MR BUSS: Yes.

GAUDRON J: I am wondering, Mr Buss, on a slightly different level, what you are really talking about in a case such as this when you say an independent might not bring an impartial and independent mind to it. What I am wondering is if you are not really saying in the circumstances of this that a person might reasonably apprehend that the Minister made his decision for the purpose of advantaging Mr Miasi and Mr Phillips' son. Now, if that is what is really being said in code, then I think the factual findings become critical, and I would have thought in your favour. But ultimately, it seems to me, in these circumstances we are talking about whether might reasonably suspect an improper corrupt, as we like, motive for the decision.

MR BUSS: Yes. Well, on that point certainly, your Honour, the findings of fact are favourable to the appellant. In fact, the findings are to the contrary. The findings are that the Minister did himself give the matter full and detailed consideration and arrived at a mature view. There is no evidence and, as I understand it, no suggestion, that the Minister acted in any sense improperly and, indeed, that that was disavowed by my opponent.

GAUDRON J: No, but might the reasonable and fair-minded observer think he acted improperly?

MR BUSS: Well not if the reasonable and fair-minded person was properly informed as to the objective facts. No, in our submission.

GAUDRON J: Because, it seems to me, to reasonably come to the view that the Minister acted for the purpose of advantaging these people requires a much higher threshold than what has been talked about in this case.

MR BUSS: Yes.

GAUDRON J: Yet it seems to me that in the circumstances of this case that is all you can be talking about when you are talking apprehended bias.

MR BUSS: Yes. Well, that certainly has not been the basis on which the case has been put against us below.

GAUDRON J: No, but what other basis does it make sense?

MR BUSS: Well, with respect to our opponents, we say the case does not have any legs as soon as one fully appreciates what the respective roles of Miasi, Phillips, Burton, Ranford and the Minister were in a proper context and that, in those circumstances, a fair-minded person would have any suspicion he or she might originally might have had assuaged by the knowledge of these facts. This is not a case, nor can it be the case anywhere, where a person, who has discovered a particular fact which, on its fact, may give rise to some suspicion, can simply put their head in the sand and say, "I do not want to know any more objective facts. I have got my suspicion and I do not want to let go of it."

HAYNE J: The argument may owe much to the need to resort to the concept of suspicion and to excite that aspect of jurisdictional error - natural justice - which depends or is satisfied by proof of suspicion, whereas other aspects of want of jurisdiction may require more definite proof and you get into natural justice so that you have the advantage of this lower threshold and improper purpose and the like may, it may not, require demonstrated improper purpose rather than suspicion of improper purpose or the like.

MR BUSS: Yes.

HAYNE J: A demonstration which the trial judge found failed.

MR BUSS: Yes. Any case, in our respectful submission, your Honour, involves, first, an analysis a statute and perhaps going back to the observations of Justice Brennan of this Court in Annetts v McCann as to the true theoretical basis for the implication of the common law rules and natural justice in administrative decision-making. The statute is the beginning to see to what extent there can be any "bias" held by the decision-maker or those advising him in particular cases and once that has been determined the rules of natural justice may have a diminished area for operation.

GLEESON CJ: Suppose you knew, as a fact, that the Minister's secretary held shares in AuDAX, if that is the relevant company?

MR BUSS: Yes.

GLEESON CJ: Where would you go from there if you wanted to make out a case challenging the Minister's decision? Would it be sufficient to say, "I know that the Minister's secretary has shares in AuDAX and I do not know and do not wish to know anything else" or would you have to say, "The next thing I need to know is what, if any, influence the secretary had on the Minister's decision?"

MR BUSS: You would need to go the second step and, in addition, you would need to know the quantum of the shares. In particular, you would need to know whether it was a substantial shareholding.

GLEESON CJ: Well, now, suppose you knew it was - I do not like that expression "substantial shareholding" if I may say so. It is a technical term that is rather misleading in this context. If it was a significant shareholding - and let it be supposed that you knew that the secretary had pleaded with the Minister to grant the mining tenement in accordance with the Warden's recommendations. Suppose you knew that?

MR BUSS: Yes.

GLEESON CJ: What would then be the rubric under which you would consider whether the Minister's decision could stand?

MR BUSS: The rubric would be whether, on those facts, there was a reasonable apprehension that the Minister might be influenced in the decision he made by the questions of concern for or by accepting the entreaties of his secretary.

GAUDRON J: Again, would that be so, because we are not talking about a case of prejudgment. We are talking about a case of interest, of financial interest, not direct and not the Minister's financial interest. Where a decision-maker has a direct financial interest then it is reasonable to assume that he or she may - to suspect that he or she may have acted out of his or her own interest. What you have really to say here, I think: reasonable suspicion that the Minister might have acted in the interests of these other people.

MR BUSS: Yes, and that carries with it - - -

GAUDRON J: It is one thing - it just seems to me that there are different areas of debate when you are talking about interest and prejudgment.

MR BUSS: Yes.

GAUDRON J: In a case of prejudgment, influence might well be a critical consideration. Even the "Yes, Minister"-type situation might well have very considerable bearing on prejudgment but I am not too sure you can do it when you are talking interest.

MR BUSS: Yes. Perhaps the true way of looking at the matter is that one would need to have a reasonable suspicion that the Minister had not decided the matter wholly on its merits and by reference to considerations which were legitimate, that is, proper considerations having regard to the statute properly construed, but whether he had had regard to an illegitimate consideration, such as the desire to confer a benefit upon his secretary whom he knew held a significant interest in the company concerned.

HAYNE J: That may be a case better understood as a case of bad faith or fraud, may it not, rather than want of procedural fairness? Certiorari will go for bad faith or fraud.

KIRBY J: Is it not the dual face of Janus? It is bad faith and fraud vis-à-vis the secretary and a want of procedural fairness to the respondents because they are not given the chance of making corrective submissions or somehow disqualifying the person who might influence the Minister.

MR BUSS: Yes, although I suppose it becomes difficult to regard that as two sides of the same coin where there is a finding that the Minister is, in effect, acting from corrupt motives or bad faith, because it is not something which is, ordinarily - submissions are required to correct that. I mean, it is something which goes very much to the state of mind of the Minister, rather than simply correcting a submission or a mistaken view, or something of that description.

GLEESON CJ: Now, revert to the earlier example I gave you. Suppose you know that the Minister's secretary owned shares in AuDAX and you know nothing else. You know nothing about what, if any, role the secretary played in the Minister's decision to grant the tenement.

MR BUSS: That would not be sufficient, in our submission, to give rise to any form of suspicion that the Minister had not determined the case by reference to proper considerations.

GLEESON CJ: Now, suppose you knew that the role that the secretary played was that she typed up the decision.

MR BUSS: That of itself would not be sufficient, in the sense if she had done nothing more than typed the decision which the Minister had determined. That in itself would not be sufficient, in our submission, if the person was no more than a scribe. Your Honours, would it be convenient to move onto the second point now, or were there - - -

GLEESON CJ: Yes.

MR BUSS: - - - other issues that I ought deal with?

HAYNE J: I do not know why you are looking at me, Mr Buss.

MR BUSS: Perhaps before I do so, I can endeavour to encapsulate some of the points which have arisen during debate and that is, if one looks at this issue from the alleged corruption of the process, the question becomes, "Has the otherwise impartial and independent mind of the Minister been affected by a corruption of the process?" Another way, perhaps, is saying, "Is it enough if there is an apprehension or suspicion of bias by the Minister?", which, I think, is the way that it was really put in our submissions. But the point, I think, that had been put to us by the Court, and which we had accepted, was formulating the test by, "Has the otherwise independent and impartial mind of the Minister been affected by a corruption of the process?"

Turning now, then, to the second issue. It is our submission that the Full Court erred in that it failed properly to consider and take into account the nature and extent of Miasi's involvement in the process by which the non-binding recommendation was made to the Minister and that is apparent from the judgment of Justice Sheller at page 245 of the appeal book in paragraph 81 where I think your Honour Justice Gummow drew attention to that a little earlier, so it is paragraph 81 on page 245. Then in paragraph 83 on the same page, the last five lines or so where his Honour said:

Furthermore, I am of the opinion that the apparent connection between Mr Miasi and the recommendation of the Department which went forward to the Minister is such as to give rise to a reasonable apprehension of bias. Mr Miasi had a direct - - -

GUMMOW J: Bias on whose part? It does not say.

MR BUSS: I think by inference it must mean - - -

GUMMOW J: The Minister?

MR BUSS: Yes.

KIRBY J: It can only be the Minister because that is the only decision-maker.

MR BUSS: He is the decision-maker. Justice Sheller then continued:

Mr Miasi had a direct, though relatively small, pecuniary interest in the outcome of the Hot Holdings application. Had he been the decision-maker, this would have resulted in his automatic disqualification regardless of the particular circumstances.

Now, of course, this was written by his Honour before this Court delivered its judgment in Ebner.

GLEESON CJ: What he said would have been precisely correct in line with Ebner if you just deleted the word "automatic".

MR BUSS: Yes, that is right. It perhaps, though, indicates it may well have coloured the approach of his Honour to this particular problem. I have difficulty seeing that the word "automatic" adds anything to that sentence.

MR BUSS: Yes, very well, your Honour.

GAUDRON J: I take it that this is premised on either Mr Miasi's knowledge or public knowledge that AuDAX had bought out 80 per cent of Hot Holdings' interests. This seems to be an issue not addressed in the judgments.

MR BUSS: Yes, there was an option under which AuDAX had an option to purchase 80 per cent of the Hot Holdings tenement if the Minister should grant it. It has been wrongly, I think, referred to in the judgment of the Full Court as the whole of the interest, but there is no issue between the parties that it is 80 per cent.

GAUDRON J: That was a matter of public knowledge, I take it, was it, or something like that?

MR BUSS: Yes, it would have been in that AuDAX was a public company.

GLEESON CJ: It probably would have been disclosed to the stock exchange, would it not?

MR BUSS: It was a public company, yes.

The other paragraph in Justice Sheller's judgment that is relevant in this context is at paragraph 92 at page 250 of the appeal book.

GUMMOW J: Paragraph 91, is it not?

MR BUSS: Paragraphs 91 and 92, your Honour, yes. It is really 91 and the first half of 92 going on to page 251 and, in particular, the finding that the trial judge made a finding that Mr Miasi did not play any part in forming the decision of Burton and Phillips.

McHUGH J: But the critical statement is the statement in the last sentence of paragraph 91 that a "fair minded . . . member of the public" would have:

a reasonable apprehension . . . that the Minister, acting on or taking account of such advice, which he believed was impartial, but which it could fairly be suspected was not, had himself for this reason not acted impartially.I just have some difficulty - in fact, I have very considerable difficulty in understanding how this is a case of bias at all.

MR BUSS: Yes.

McHUGH J: It would be one thing if it was alleged that a Minister simply rubber-stamped the decision, so that he, in effect, relied on what was an infected process. There may be another issue if by reason of bias some fact was not put before the Minister, or some fact was misstated and put before the Minister, but at the moment I just have difficulty in understanding how it can be said that the Minister did not act impartially.

MR BUSS: Yes, and, as I have mentioned, there were express findings by the Full Court that the Minister did not merely rubber-stamp the submissions and that is apparent at paragraph 96.

GAUDRON J: Could I just get back to knowledge. There is no finding that the Minister knew of anybody's interest?

MR BUSS: No, no finding at all.

GAUDRON J: Is there any finding that he did not know? He did not give evidence, did he?

MR BUSS: No, the Minister did not give evidence, but there is no finding that he did know.

GAUDRON J: Or that he had any reason to suspect?

MR BUSS: Or that he had any reason to suspect, none whatever. There was evidence from Phillips on affidavit to the effect that to the best of his knowledge neither the Minister nor Mr Ranford, the Director-General, knew of the interest of Miasi or Phillips' son.

GAUDRON J: And in the face of the code of conduct, you would assume, I take it, that he would have reason for thinking to the contrary?

MR BUSS: Yes, indeed. One would ordinarily start with the presumption that public servants have honestly and faithfully discharged their duty, or at least that they have acted in good faith.

GAUDRON J: Well, yes, but I am talking about knowledge, because there may well be different considerations, it seems to me, if there is knowledge or grounds for inquiry, whereas this is a case, it seems to me, where there is neither knowledge nor grounds for inquiry.

MR BUSS: Indeed, in our submission. Just dealing with your Honour Justice McHugh's question about how the case was put, one can see that the basis on which this point was put by our opponents from their motion at page 4 of the appeal book and at paragraph (e) it is alleged:

further and alternatively, the decision of the Minister:

(i) was affected by bias; further and alternatively;

(ii) gives rise to a reasonable apprehension of bias; further and alternatively;

(iii) failed to take into account a relevant consideration, as a consequence of which the applicants were denied procedural fairness.

McHUGH J: Well, I can understand subparagraphs (i) and (iii), which really attacked the process and (iii) also attacks the process, but at the moment what I have difficulty about is "gives rise to a reasonable apprehension of bias" on the part of the Minister.

MR BUSS: Yes, and the particulars which purport to govern all three paragraphs, your Honour, simply say that:

The decision of the Minister was in effect the adoption of a recommendation of the said DME minute, of which a senior officer of the Department of Minerals and Energy was a co-author, and who had, at the relevant time, a direct pecuniary interest in the subject matter of the Minister's decision. That interest was not disclosed to the Minister or to the applicants, and the Minister failed to take that relevant consideration into account when adopting the recommendation.

But the finding of the Full Court, as I have mentioned, at page 252 of the appeal book is against our learned friends. Perhaps if I could just invite your Honours to look at paragraph 96, please, where Justice Sheller says:

Their Honours acknowledged that it was unnecessary to decide the issue and in my opinion it is unnecessary to decide it on this application. As Heenan J said, the submission of the appellant applicants was quite contrary to the statement of the Minister in the second paragraph of his letter that his determination to grant the application of Hot Holdings had been made "after consideration of the warden's notes of evidence, his recommendations and all of the submissions and comments lodged". Further, the papers before the court showed that the Minister gave ample opportunity for the provision of submissions, that the issue as to whether all things in respect of the competing applicants were equal was canvassed at length in the submissions and that the minute of the Director General referred to those issues. In those circumstances, there was no basis for concluding that the Minister failed to take all relevant matters into consideration before deciding to grant the application of Hot Holdings. No sound ground is shown for challenging Heenan J's conclusions and, in my opinion, his Honour rightly held that there was no basis for an arguable case on that ground -

and also, at page 138, there was the reference to the evidence as to what the Minister had done. This is the affidavit of Burton. Page 138, paragraph 17 Mr Burton says:

The final minute and attached documents were submitted to and signed by the Director General. They were then considered by the Minister over a 6 week period from 30 June 1998 to 10 August 1998. During this period I met with the Minister on two occasions, 16 and 17 July 1998, for extended periods of time whilst he considered all the documents forwarded to him including all submissions received from the competing applicants. Neither Mr Miasi nor Mr Hicks were present during either of these meetings. Senior Assistant Crown Solicitor, Robin Griffiths, attended the first of these meetings and met separately with the Minister on 7 August, 1998.

The Minister made his decision on 10 August 1998. As your Honours know, this was a case where there was a hearing on the basis of the affidavits where none of the deponents was required for cross-examination. So none of that material was ever put in contest.

Your Honours, if I can briefly recapitulate something that I touched on, I think, thus far, and that is the nature of the hypothetical fair-minded person, that such a person is rational and willing to evaluate objective material relating to apprehended bias. The fair-minded person will not, of course, be interested in so-called facts which may be affected by the insidious nature of bias and, accordingly, evidence from people with a direct pecuniary interest who endeavour in a self-serving way to say they have not been influenced or affected by the existence of this interest will not be taken into account. In the end, persons who do not have a pecuniary interest may give evidence as to the extent of their involvement in the process and the extent of the involvement in the process of persons who did have a pecuniary interest. In this instance, of course, the Minister did not give any evidence and neither did Mr Miasi.

Our other related submission in this context is that the receipt into evidence of material objective facts does not erode the distinction between actual bias and a reasonable apprehension of bias. A party who asserts a reasonable apprehension of bias does not have to prove actual bias or lead any evidence beyond evidence which, on the face of it, establishes a reasonable suspicion of bias. On the other hand, the party who is seeking to uphold the impugned decision may lead evidence of material objective facts to put the allegation of the other party into proper context. That evidence, that is the evidence being led by the party who seeks to uphold the impugned decision, may, in fact, show that there was no possibility of any actual bias, and this is evidence which, in our submission, a fair-minded person would wish to evaluate. The fair-minded person, having evaluated this admissible objective evidence, may well take the view that any initial suspicion he or she had, by reference to a limited piece of the factual matrix, has been assuaged by all of the material facts once they have been known.

But in a real sense the onus, in a practical as well as a legal sense, would be upon the person seeking to uphold the impugned decision to bring further objective evidence to enable this to be considered. There is in no sense an onus upon the person who alleges a reasonable apprehension of bias to delve into the facts further than such evidence which can rationally and reasonably be accepted by the court as showing that there is cause for suspicion.

McHUGH J: Is there any argument in the case about the corruption of the process?

MR BUSS: Not in those terms, no, there was not. It was argued below - - -

McHUGH J: I mean if, for example, the principal evidence on which a judge relied in a case was given by a witness who, unknown to the judge, had a bias against the opposite party, you would not make a finding that there was a reasonable apprehension of bias on the part of the judge. He might set aside the verdict in some cases and, similarly, with the Tribunal, or if somebody gives turgid evidence, it may mislead the decision-maker. But I really have difficulty at the moment - perhaps Mr McCusker will be able to explain just how this question of bias is sheeted home to the Minister.

MR BUSS: It is our submission that it is not sheeted home to the Minister once all of the facts are known. The finding that the Minister brought his own mind to the case and did not rubber-stamp the decision is really, in our submission, the end of the case for our opponents in relation to apprehended bias, but that finding, which is unchallenged and which was not challenged before the Full Court, in our submission, is an insuperable obstacle to my learned friend's client.

Your Honours, in the course of our written submissions we did refer to numerous authorities, which I will not take your Honours to in any detail but simply refer to them in passing, as to the extent to which the courts have, at least in the context of curial proceedings, been willing to examine quite closely the extent of the relationship between judges and barristers. One can see that, for example, in the Aussie Airlines Case where there was very substantial objective evidence admitted as to the professional, personal and commercial relationship between the judge who was trying the case and senior counsel who was appearing for one of the parties. Similarly, in the IOOF Case there was substantial evidence imputed to the fair-minded - - -

GLEESON CJ: I am sorry, what was the previous case you referred to?

MR BUSS: That was Aussie Airlines, your Honour, which is tab 3.

GLEESON CJ: Thank you.

MR BUSS: As I have mentioned, this was a case where there was an application for disqualification of the trial judge on the basis that there was a reasonable apprehension of bias arising by reason of the long and close personal and professional relationship between the judge and senior counsel for one of the parties.

GLEESON CJ: That sounds like an interesting case.

MR BUSS: Yes. I am sure it was very interesting for those who were involved in it.

GLEESON CJ: I have not come across this one before.

MR BUSS: The critical passages against that background that I would refer your Honours to - - -

KIRBY J: Do you say that there can never be association between a judge and counsel that disqualify them? I would not agree with that.

MR BUSS: No, I do not say that. The reason I am taking your Honours to the cases is to show the extent of the objective facts and the considerations that the courts have looked at in determining an allegation of a reasonable apprehension of bias and then to compare that to the objective facts in this case which, in our respectful submission, do not go anywhere near as far as the type of factual material the courts were willing to look at and to impute to the fair-minded observer in these cases, rather than fair-minded person, and the relative sophistication of the knowledge of the workings of the legal system and the independent Bar compared in this instance where, in our submission, there is no sophisticated knowledge or anything like sophisticated knowledge to be imputed to the fair-minded person in relation to the workings of the Minister's office and the bureaucracy, generally. At page 218 in the first five lines his Honour says:

The facts and circumstances relied upon by the applicant were those contained in memoranda passing between counsel (which the parties requested and agreed be marked as confidential exhibits), a written disclosure by me to the parties, and certain statements made in the course of the hearing clarifying certain aspects of the matters disclosed in the memoranda.

Then - I will not read all of this, but just point it out to your Honours - between letters B and C, his Honour says:

The relevant facts and circumstances are detailed in that material but for present purposes may be summarised as follows -

and from - - -

GUMMOW J: Well, (e) is unusual, surely?

MR BUSS: Yes, it is unusual. Be that as it may, those were the relevant objective facts that were said to be relevant to the determination of the issues. The other aspect is the awareness of the observer of the role of counsel, and this appears from page 230, under the heading, "The awareness of the observer of the role of counsel" at letter C, where his Honour says:

In seeking to approach the matter on the basis of the principles established in the cases I have referred to, the "informed" observer, when examining the association in the present case, can be assumed to do so with the presumed general knowledge that -

and what is then set out from (a) to (e) is a detailed knowledge of the manner in which the Bar works, and the interaction, at least, between some barristers and the Bench. Finally, between letters F and G, his Honour said:

The hypothetical observer when informed of the close association relied upon in the present case may initially approach the matter by saying:

"I'm not sure about all this - wouldn't it be better if another judge who was not so closely associated with the senior counsel heard the case?"

Although that may be the start of the process of inquiry the issue is whether that observer upon being informed of the kind of matters set out above concludes, not whether it would be better for another judge to hear the matter, but whether the judge sitting to hear the matter might not bring an impartial and unprejudiced mind to the resolution of the two questions for decision.

So we take your Honours to the cases I have mentioned simply to indicate that, in a different context, the courts have been willing to attribute to the fair-minded observer or person substantially more sophisticated knowledge than, we submit, needs to be attributed to the fair-minded person in this case, where we are attributing, in essence, facts - objective facts - which are established by uncontested evidence.

GLEESON CJ: Subject to the possibility of delegation that I think you mentioned, this is a decision that has to be made by the Minister.

MR BUSS: That is right, your Honour.

GLEESON CJ: The Minister cannot avoid it, as it were.

MR BUSS: That is our submission.

GLEESON CJ: Suppose that it appeared that the company, Hot Holdings Pty Ltd or AuDAX - I do not care which - was a major donor to the political party of which the Minister was a member. What would be the consequence of that? The Minister could not avoid making a decision.

MR BUSS: Yes.

GLEESON CJ: Where would you go from there?

MR BUSS: If I can deal with that last point first. The only way the Minister could avoid making a decision would be by an express delegation under section 12 of the Act.

GLEESON CJ: Put that possibility to one side.

MR BUSS: Put that aside. In our submission, it would be necessary for the person challenging the decision to show a reasonable apprehension that the Minister knew of the donation; there would need to be some evidence as to whether it was a significant donation or not; and also some evidence that might give rise to the suspicion that the Minister, in the knowledge both of the existence of the donation and its size, might have taken that into account in determining the outcome.

GAUDRON J: But, now, what would be the ground on which you would challenge it and, in some respects, the debates just assumed - although I think Justice Hayne has raised it from time to time - that this is all under the rubric of procedural fairness or the rule against bias. But in the Chief Justice's example, decisions made, do you not have to prove fraud on the power, improper purpose and prove it as a fact to get the decision set aside?

MR BUSS: Yes, in our submission, it would not be a bias case because, going back to the statute, one construes the statute and sees that although the Minister is a politician, nonetheless, Parliament has given him a power which is to be exercised without regard to party political considerations.

McHUGH J: What you would have to show is that it was exercised for an improper purpose, would you not?

MR BUSS: Yes and the improper purpose was to benefit someone who was a donor to the political party of which he was a member.

GAUDRON J: Yes. Why is that not the same in this case?

MR BUSS: In our respectful submission, it is not on the facts of this case because it is not made out, but that if there were different facts which were being sought to be attacked and a different assumption made as to what motivated the Minister in making his decision, then, in theory, that would be the approach. It would not be on the basis that there was bias.

GAUDRON J: That is what I am asking about, but not only that there was bias. Why is suspicion enough, why are we interested in suspicion, other than the facts in this case? You see, in the political party donation case, I would have thought you had to prove improper purpose or fraud on the power to have it set aside?

MR BUSS: Yes, in our submission, you would need to establish either of those things to set it aside.

GAUDRON J: I mean I am talking about actual improper purpose, not suspicion.

MR BUSS: No, that is true, your Honour, in our submission.

GAUDRON J: Why is suspicion good enough in this case that we are hearing today?

MR BUSS: On the facts of this case, suspicion is not good enough and, indeed, we adopt the proposition that it will be necessary in order to set aside the Minister's decision to show that there had been a corruption of the process in a manner which involved the Minister's discretion having been exercised improperly, improperly in the sense that it was exercised for a purpose which the statute did not permit.

GLEESON CJ: I do not mean it offensively at all, but it might be very difficult for a Minister to be above suspicion?

MR BUSS: Yes, indeed, particularly - - -

GLEESON CJ: Because of the nature of politics.

MR BUSS: Indeed, because of the fact that it is essentially a political process and, in those circumstances, the better way of dealing with it would be, in our submission, to examine the process to ascertain whether it had been corrupted or not and to require that level to be - - -

GAUDRON J: I do not understand that expression. When I say I do not understand it, I understand it in general terms, but what are we talking about in terms of corruption of process? There are a number of well-recognised grounds on which an administrative decision can be set aside. When you talk about the corruption of the process, what grounds are we talking about? It seems to me we have to come back to the precise grounds that you assert would apply. Let us assume that one of these people actually advised the Minister and the advice was accepted, albeit not necessarily - let us say it is rubber-stamped, "I accept the recommendation of Mr X" - let us assume that is the decision - it is not unusual in a public service area to see that that is the decision, "I accept the recommendation of Mr X." Mr X, unbeknownst to the decision-maker, has made that recommendation for an entirely improper purpose and, in the ordinary parlance, has corrupted the process, as we would understand it. What are the grounds on which that decision could be attacked?

MR BUSS: The decision of the adviser could not be attacked. It would be necessary again to focus on whose decision it was, which was the Minister's. So you would need to establish that the Minister had not independently considered the matter but that his decision had been relevantly affected by the advice that had been given by the public servant who had taken an improper matter into consideration or had acted fraudulently.

GAUDRON J: Well, you would be saying no decision at all. That assumes perhaps a rubber-stamping - no decision at all.

MR BUSS: Rubber-stamping, indeed.

GAUDRON J: Okay, but let us assume that it is not a rubber-stamping. Let us assume three competing recommendations come - not an unusual situation in the administrative process. The Minister considers each one and his decision is, "I accept the recommendation of Mr X", who, unbeknownst to him, has an improper purpose in making that recommendation.

MR BUSS: In our submission, in order to set aside the Minister's decision one would need to show that the third alternative had in some way misrepresented the facts or misrepresented the circumstances. The mere making of the recommendation by the public servant for an improper purpose would not be enough. It would be necessary to show that at the - - -

GAUDRON J: What grounds though are we talking about? On what grounds do we challenge the decision, is what I am asking. We are talking in the area of the prerogative writs here, are we not?

MR BUSS: Yes.

GAUDRON J: We are not talking about AD(JR)-type grounds of review.

MR BUSS: No, one would need to establish either that there had been a rubber-stamping of the decision by the Minister, so there was no real decision, or, alternatively, one would need to show that somehow the Minister had adopted whatever improper purpose had infected the third submission that was put up - - -

HAYNE J: And that is fraud.

MR BUSS: Fraud on the power.

GLEESON CJ: This is a case, is it not, in which the Mining Warden made public recommendations?

MR BUSS: Yes.

GLEESON CJ: The Minister received submissions about the Warden's recommendations from all the parties.

MR BUSS: He did, yes.

GLEESON CJ: And he also received departmental advice.

MR BUSS: That is right.

GLEESON CJ: And the departmental advice, as I understand the facts, simply amounted to saying, "There is no reason why you shouldn't follow the Mining Warden's recommendations."

MR BUSS: In substance, that is true, your Honour.

GLEESON CJ: Now, the advisers were Mr Phillips and Mr Burton.

MR BUSS: Mr Phillips and Mr Burton.

GLEESON CJ: Let it be supposed, contrary to the facts, that Mr Phillips did have a personal financial interest in the matter and let it be supposed that it was proved that Mr Phillips said to somebody, "You know, I actually did think in my own mind that the submissions advanced by the opposing parties were very cogent, but because of my financial interest I advised the Minister that I could think of no reason why he shouldn't follow the Warden's recommendations." Suppose those were the facts. On what basis would you challenge the Minister's decision?

MR BUSS: Can I just, in answering that question, say that there is a further person who is in the loop. I am going to deal obviously with your Honour's question, but just to point that there is, of course, Mr Ranford, the Director-General, and all of the papers had gone to him.

GLEESON CJ: I understand that they were separate.

MR BUSS: But just taking him out of the loop for the moment and assuming that the matter had simply gone forward with the minutes signed by Phillips or Phillips and Burton, in those circumstances fraud on the part of Phillips would be established in the sense that he had fraudulently carried out his duties as a public servant.

GLEESON CJ: Yes, but Phillips has no power.

MR BUSS: He has no power though in relation to the - - -

GLEESON CJ: Right, so what is the rubric under which one would legally challenge the Minister's decision?

MR BUSS: The rubric under which you would challenge the Minister's decision would be that you would need to show that the Minister had taken into account the departmental minute and he had therefore taken into account advice which had been dishonestly prepared and given to him and you would then need to show also that that had had some impact upon the decision-making process of the Minister himself. In other words, you would need to show that the Minister had not himself independently considered the matter - - -

GLEESON CJ: That is a different point, a different question. I am assuming the Minister independently considers the matter.

MR BUSS: Yes.

GLEESON CJ: Are you saying that the fact that his decision has been influenced by a biased advice produces a certain legal consequence and, if so, I would like to understand what the consequence is?

MR BUSS: Well, our submission is that if the Minister has independently considered the matter himself then his decision is not susceptible to be set aside because some advice that he has been given, that he may take into account but he is not bound to take into account, will not vitiate his decision.

KIRBY J: I thought you conceded earlier that that would depend a bit on what that advice was, whether it, on its face, was heavily weighted in one particular way, whether it omitted facts that were pertinent and might have been expected or included facts that were not pertinent, but walked the matter in one direction. Surely it is a matter of what the reasonable observer looking at this process is going to infer from it.

HAYNE J: Why? Why has it got anything to do with the reasonable observer unless it is a natural justice case?

MR BUSS: Well, in our submission, it does not have anything to do with the reasonable observer, but to deal with your Honour Justice Kirby's point, if it could be shown that the minute that was put up by Phillips in fact had misstated the facts or had otherwise made various misrepresentations and that there was a reasonable basis for thinking that the Minister had relied on them, then the Minister's decision may be able to be challenged on the basis that he failed to take into account proper considerations or he had taken into account irrelevant considerations having been - - -

GAUDRON J: Well it would still have to be jurisdictional error, would it not, of a kind. We are not in AD(JR) territory.

HAYNE J: And we begin, do we not, from Craig, that certiorari runs for recognised reasons. Recognised reasons are jurisdictional error, failure to observe, applicable requirements of procedural fairness, fraud or error of law on the face. That is from Craig [1995] HCA 58; 184 CLR 163 at 175 to 176.

MR BUSS: Yes.

HAYNE J: Now the inquiries made of you of what rubric these various fact situations fall have to be understood, do they not, in light of the ascertainment of a relevant ground upon which certiorari will run. Certiorari is not simply there as an appeal.

MR BUSS: No. If one then looks to the judgment of this Court in Craig v South Australia, then one would need, within the dichotomy of decision-making that was referred to by the Court, to endeavour to fit within that the example that the Chief Justice has postulated and, in our submission, it would not fit within any of the established grounds for certiorari to run. There would not be an absence of jurisdiction in the Minister.

McHUGH J: Well, it might possibly. I mean, we dealt with this sort of problem in Foster's Case, that extradition case where various matters were put before the Minister as to whether or not we should send Foster back and that application was dismissed, but that was an AD(JR) case. But, the bias itself seems to me to be totally irrelevant. It is the product of that bias that is relevant and, if, as a result of that bias, something is put before the Minister which he should not have taken into account or it omitted something that he should have taken into account, the jurisdiction, we then you might set aside his decision but if it only goes to a question of fact, so what? It is no different from some perjured evidence that is given that the Tribunal relies on.

MR BUSS: And that is the difficulty that our opponent faces in this case with the finding that I have referred to in terms of the Minister's approach and the fact that the Minister did not rubber-stamp the matter and on the basis of the manner in which our opponents have challenged the decision, that is a complete answer, in our submission.

KIRBY J: That may be correct but it does seem to ignore the reality of the way in which a decision at the end of the process can be warped by the process itself. Feed in biased material and you will get a biased decision and if that is not the decision which is contemplated under the statute, then it is not a decision according to the law. I mean, the grounds stated in the AD(JR) Act 1994 were intended to be an attempt to express the various grounds that had emerged from the common law elaboration point, so there is nothing magical about the AD(JR) Act. It, too, does not create an appeal.

MR BUSS: No, that is correct, your Honour, and in large measure they are an elaboration of the common law but plainly there are material differences in terms of the types of decision that are defined in the Act as being amenable to review under the AD(JR) Act, whereas in the case of certiorari, of course, one has to identify the decision and the decision sought to be quashed in this instance can only be the decision of the Minister, in our submission.

Your Honours, the balance of our submissions are really predicated on the basis that the initial submission that we have made, or the preferable legal basis for determining the appeal is not upheld and it is necessary to examine more searchingly the application of apprehended bias in relation to this test and in the course of doing that there were two points that arose and they were really, I suppose, the question that arose from the Sussex Justices Case, which was considered by the House of Lords in Gough, being, in essence, whether Sussex Justices was correctly decided on - - -

GLEESON CJ: I am not sure why you get into that. This entire procedure offends Sussex Justices. I mean, here is the Minister taking internal departmental advice.

MR BUSS: Yes. That is right.

GLEESON CJ: Did the Minister make the advice that he received from Messrs Phillips and Burton available for comment to the various interested parties.

GLEESON CJ: Is there any suggestion that he should have done so?

MR BUSS: Not as we understand it, no. In our submission, there would be no necessity for him to have done so. The Minister was entitled, under the Act, to take into account that there were no limitations upon the matters that he could or could not take into account and anything that could or could not be taken into account depended upon any limitations implied into the statute. Beyond that, having received submissions from the parties and given each party had the opportunity to comment on the other party's submissions, it was not necessary for him to refer to the parties' each and every point on which he might have received advice either by the Crown Solicitor or anyone else. In those circumstances it was, of course, a different process to that in the Sussex Justices Case.

There is also the issue that may arise in terms of the fact that if the case were to be decided on the basis of whether there was a reasonable suspicion of bias, whether any facts could be imputed to the hypothetical person which are inconsistent with, or not coextensive with, the findings of fact made by the learned trial judge in the Full Court. In that regard we have referred in our written outline to the decision of the Full Court of the Federal Court in Gas Fuel Corporation Superannuation Fund v Saunders, admittedly, quite a different case on the facts but one in which a trial judge who was in receipt of an application to disqualify himself for apprehended bias in circumstances where the alleged bias turned on whether affidavits in support of a Mareva injunction had reached his chambers by 11 am on a particular day and at the invitation of all of the parties the learned judge then decided that issue and decided that the affidavits had not reached his chambers by the critical time.

In those circumstances, the learned judge nevertheless decided the case on the basis that the reasonable fair-minded observer might not accept his word that the affidavits had not reached him until a later time and that he had not, in fact, looked at them and decided the case and disqualified himself on the basis that the fair-minded observer might reasonably think that the judge was wrong and that he had, in fact, looked at the affidavits. His Honour's decision disqualifying himself was taken on appeal to a Full Court of the Federal Court which reversed his Honour. There are one or two passages that are pertinent in that they indicate, in our submission, that where there has been a forensic contest and a judicial determination of particular facts, it will not ordinarily be proper or appropriate to impute to the fair-minded observer facts which are at variance with those which have been judicially determined and found to exist.

There are two passages we should take your Honours to against that brief statement of the salient facts. The first appears at page 57 of the report. This is an extract between D and E from the reasons of the learned trial judge, at first instance, where his Honour says:

I return to the question whether a person in Mr Saunders' position might reasonably suspect that I had in fact read any of the documents before stating my conclusions. There is authority that where the means of communicating to the judicial officer information or opinion likely to excite bias in a person, the oath of the judicial officer that no such a communication had occurred, or acceptance by counsel for the party claiming disqualification that no such a communication had occurred, does not preclude a finding that an interested person might reasonably have suspected that the communication was made. Is the position the same where the means of communication is a document in the judicial officer's possession? In the particular circumstances of this case a suspicion that I had read the documents before stating my conclusions would entail the suspicion, not only that I had falsely stated the contrary, but a suspicion that I had falsely found that the documents were filed at 11 am - - -

GLEESON CJ: Why are you taking us to this?

MR BUSS: On this basis, your Honour, that if your Honours decide that the determination of this appeal should be by reference, in part, at all, to a reasonable apprehension of bias, then it is relevant that in determining the objective facts to be imputed to the fair-minded person, to appreciate that those facts have been determined after a forensic contest and that no facts may be imputed to the fair-minded observer which are inconsistent with, or not coextensive with - - -

GLEESON CJ: You mean, the fair-minded observer should be attributed with knowledge of the facts found by Justice Heenan?

MR BUSS: That is right. Really, this is the point that is illustrated, in our submission, in the joint judgment of his Honour Justice Gummow and Justice Heerey.

GLEESON CJ: What page?

MR BUSS: The key passage appears to be at page 67E, where their Honours said:

The objective and indisputable fact on which Sussex Justices turned was the retirement with the justices of a deputy clerk who had an obvious interest in the outcome of the case. In the present case, the comparable facts are that Mr Westgate placed the affidavits in the file and Miss Bendall placed the file in his Honour's room. In itself that conduct of persons totally disinterested in the proceedings could not excite the apprehension of the most sensitive bystander or the most suspicious litigant. The only aspect which could have gotten an apprehended bias case off the ground was perhaps the question of timing. That issue, in contrast to anything which occurred in Sussex Justices, was the subject of a forensic contest and judicial determination. With respect to his Honour, this was not a case where the parties were asked merely to accept "the unsworn statements of a judge" as to a disputed question of fact.

Then I think I can pass over the next paragraph and go to the last two lines:

Therefore it would be wrong in our opinion to give effect to a hypothetical belief by a bystander (supposedly reasonable and fair-minded) that his Honour's reasoned finding of fact could be ignored and replaced by irrational prejudice. Acceptance of judicial decisions, unless and until lawfully set aside, is fundamental to the rule of law. It would be paradoxical for courts themselves to reach a result which necessarily required the abandonment of that principle.

So it was in this case that the various affidavits were filed, the deponents were not required for cross-examination and various findings of fact were made both by the trial judge and also by the Full Court. So it is, we submit, that no reasonable apprehension can be attributed to the fair-minded person to the extent that that apprehension is inconsistent with, or not coextensive with, the facts as judicially found.

Now, there are only a few other brief submissions that I need to make and then to correct some of the statement of the facts in the submissions of our learned friends for Mr Creasy and also in a memorandum relating to certain facts that we received last night, where there are, in our submission, some errors that require correction.

Before turning to those factual matters, can I summarise the other errors of the Full Court. The first is at page 245. This point has already been touched on but it is the point that the Full Court erred in holding that the apparent connection between Miasi and the recommendation of the department which went forward to the Minister was such as to give rise to a reasonable apprehension of bias. The Full Court so held notwithstanding the finding of the trial judge, which was not challenged, that on the evidence Miasi played no part:

"in forming the decision of Messrs Burton and Phillips that the draft minute should support the warden's recommendations.

That finding has already been referred to at paragraph 81 and it is also referred to at paragraph 73 of the Full Court's judgment at page 241. It is in lines 3 to 7 of paragraph 73. As to other errors we rely upon, at page 250, in paragraph 90, the Full Court held that the shareholding of Phillips' son was significant:

when looked at, as it must be, in the circumstances of Mr Miasi's shareholding. These circumstances are assumed all to be known to the informed member of the public and in that sense must be aggregated.

It is our submission that a fair-minded person would examine the facts and circumstances surrounding the shareholding of Phillip's son in the same manner and independently of the examination of the facts and circumstances surrounding Miasi's shareholding. There are plainly dangers, in our submission, in simply aggregating one's suspicion with another suspicion. Each must be carefully examined separately and in isolation. No doubt, once those findings have been made, they are both placed into the scales and operate together with other facts in determining whether a reasonable suspicion which may first have existed should still be held or not.

At paragraph 92 the Full Court held that the "non-disclosure of . . . the interest of Mr Phillips' son" strengthened the suspicion of bias arising from the non-disclosure of Miasi's shareholding.

GLEESON CJ: Where is that?

MR BUSS: It is the last two lines of page 250, your Honour, where it says:

Mr Miasi's non-disclosure of his share holding and the interest of Mr Phillips' son, also undisclosed, strengthen the suspicion.

GLEESON CJ: Suspicion of what?

MR BUSS: By inference, reasonable suspicion that the Minister had not approached his task with an independent and impartial mind.

GLEESON CJ: But these are non-disclosure to the Minister.

MR BUSS: Yes, that is right.

GLEESON CJ: So the proposition is that the failure by these people to disclose these facts to the Minister strengthens the submission that the Minister was biased?

MR BUSS: Yes, it has to be, it is incongruous, in our submission, because, of course, if the Minister did not know, he could hardly take them into account, could he? In any event, there may be some confusion there with the principle that was referred to by the majority of this Court in Ebner in relation to a failure by the actual decision-maker not to disclose a financial interest which is relevant, if at all, only because it may cast some evidentiary light on the ultimate question of reasonable apprehension of bias, but a failure to disclose, according to the majority in Ebner, has no other legal significance. So there appears to be perhaps a confusion with that idea, even though this judgment was written before the Court delivered judgment in Ebner. In any event, it is incongruous in the sense that if the Minister did not know about it, then that is surely something that would assuage any concerns that a reasonable, fair-minded person might have.

KIRBY J: I think it must be said in the context of a criticism of the process because what his Honour seems to be saying is that a bystander looking at this and learning that not one but two people had had interests and had not revealed them makes the bystander uncomfortable about the process and, therefore, about what emerges at the end of the process.

MR BUSS: That may be what - - -

GLEESON CJ: But it is a submission - a suspicion concerning the Minister appears with complete clarity from the preceding four lines.

MR BUSS: Yes.

GLEESON CJ: The word "suspicion" comes in at line 47 and it is a suspicion - omitting words - a:

suspicion . . . that the Minister . . . had himself for this reason not acted impartially.

MR BUSS: Yes, that certainly must colour what follows.

GLEESON CJ: That is the submission that is being strengthened by the failure of people to disclose things to the Minister.

MR BUSS: Yes.

KIRBY J: But that is not inconsistent with what I just put to you. It is meaning that the Minister, though perhaps himself without moral blame, is the recipient of biased material that infects his decision making and that the statute implies and the common law requires that it be made without that disqualifying element. This is what I take Justice Sheller to be getting at here.

MR BUSS: Yes, with respect, the issue that your Honour has put to me would be a matter that goes and runs straight into the non-rubber-stamping finding, though, in the end, the answer to your Honour's concern, with respect, is that there was an actual finding that the Minister did not rubber stamp, but had considered the matter properly.

KIRBY J: He may not have rubber-stamped, but the suggestion, at least, the argument, as I understand it, is rubbish in, rubbish out, that if he gets the material that is warped, that will affect his data upon which he makes his decision.

MR BUSS: It may do in another case, your Honour, but there when one looks at the terms of the minute, one can see that one cannot fairly, with respect, describe that as "rubbish in" in circumstances where - - -

KIRBY J: That is why I overpitched the argument in order to illustrate it at its highest, but the facts is that if you give a decision-maker material which is warped in one particular way, or may be warped, then that is going to affect what comes out at the end of the process of decision making.

MR BUSS: That may well be but not in this case.

KIRBY J: Where is the minute? What is the page reference to the minute?

MR BUSS: The minute that was signed by the Director-General appears in a couple of places. I am just trying to find the most convenient one. It is at 139 and it is most convenient because the draft minutes are behind that. The final minute is from 139 to 149 and the draft minute before the matter came to Burton is at 150 to 163 and a comparison of the minutes which underlines the common words between the final minute and the draft minute starts at 165 and continues to 179.

Perhaps while I am doing that, just for completeness, the account of what was in the handwritten draft of Miasi which he gave to Hicks is set out in Hicks' affidavit at 115 through to 117. There are just two or three more errors which I can deal with, I think, reasonably quickly. One: it is also apparent from coming back to paragraph 92 of the judgment of Justice Sheller. In our respectful submission, the Full Court erred in that having said that the evidence of Phillips to the effect that his involvement in the process was:

not influenced by Miasi, or . . . his knowledge -

of his son's shareholding and he said that that evidence was irrelevant, the Full Court did not go on to consider the capacity of Phillips to influence the decision and did not go to on to consider whether there were any countervailing considerations. In particular, we say that the Full Court did not evaluate and take into account or evidently gave inadequate weight to the facts and circumstances set out in paragraph 27 of our written submissions.

Now, I will just note, if I may, paragraph 27 and not refer to them in detail, but they concern such matters as the significance of the statutory role of the Warden, who conducted a public hearing with each party being represented by counsel and then submitted his report and recommendation to the Minister. The final minute and attached documents were submitted to the Director-General and signed by him.

This is one point on which there does not appear to be any real emphasis in the Full Court's judgment, that is that the final minute and the attached documents went to the Director-General, who is the chief executive officer of the department and known as the Director-General of Mines, and there is no evidence that the Director-General did not read and consider the final minute and the attached documents and form his own view as to the appropriateness of the recommendations contained in the minute, because the minute, after all, is a minute from the chief executive officer of the department and, in our submission, that is a significant countervailing consideration, that it went to the Minister under his hand.

The other matters in paragraph 27 we have already touched on, your Honours, and I will not repeat them. Another error made by the Full Court, in our submission, is also apparent from paragraph 91 on page 250 where the Full Court held that Miasi:

had taken part, albeit at the periphery, in the giving of advice -

to the Minister -

to grant an exploration licence -

to the appellant. The Minister acted on that advice and in those circumstances there would be a reasonable apprehension on the part of a hypothetical fair-minded and informed person:

that the Minister, acting on or taking account of such advice . . . had himself for this reason not acted impartially.

Now, in our submission, the Full Court erred in that Miasi did not, in any sense, take part in the giving of advice to the Minister. The finding of the learned trial judge was to the contrary and the Full Court accepted his finding.

GLEESON CJ: Well, what the Full Court actually said in paragraph 91 was that Miasi:

had taken part, albeit at the periphery, in the giving of advice -

and what it said in paragraph 92 is that:

The trial judge's findings that Mr Miasi did not play any part in forming the decision -

was irrelevant.

MR BUSS: Yes, that is right. Those are both findings that we challenge. We challenge the finding that the trial judge's finding was irrelevant. The Full Court accepted his finding in the sense that it was not challenged, but they said it was irrelevant and, in our submission, that is an error that I think we have drawn attention to earlier in the course of our submissions, that, in our submission, it was not correct to say that that finding was irrelevant in evaluating the decision on the basis of whether there was a reasonable apprehension of bias or not.

GLEESON CJ: What exactly was the decision that is referred to in the second line on page 251? I know it is the decision of Burton and Phillips, but what did they decide?

MR BUSS: They decided, in essence, that the minute from the department to the Minister should indicate that there was no reason why the Warden's recommendation should not be adopted.

GLEESON CJ: Do you mean that they decided the form and substance of the minute that they would present to the Director-General for signature?

MR BUSS: We understood that the decision referred to of Burton and Phillips was the decision that the minute from the Director-General or from the department should be to the effect that there was no cogent reason not to accept the Warden's recommendation.

GLEESON CJ: I think we may need to be a little precise about this. I presume that the actual decision as to the minute that would go to the Minister was the decision of the Director-General?

MR BUSS: Yes.

GLEESON CJ: That may have involved approving, or rubber-stamping, or whatever you like, something that his subordinates had put before him, but it was the Director-General who decided what would go to the Minister. Is that right?

MR BUSS: That is correct.

GLEESON CJ: Well, what were Burton and Phillips deciding, other than what would go to the Director-General?

MR BUSS: Nothing else, in our submission.

GLEESON CJ: They had no capacity to decide what would go to the Minister, did they?

KIRBY J: This is all theory, though, is it not? I mean, in reality, what you feed into the bureaucratic chain tends to go up, if Sir Humphrey and Sir Arnold agree that it goes up.

MR BUSS: Perhaps if I can deal with those questions - I am sorry, I misunderstood your Honour the Chief Justice's question of me. I was endeavouring to ascertain and explain to your Honour what Justice Sheller was referring to, in referring to the decision of Burton and Phillips. I think what Justice Sheller was referring to was the decision of Burton and Phillips, that there was no reason why - just leaving it general for the moment, before I become specific, there was no good reason why any recommendation from "the department" should be other than that the recommendation of the Warden be adopted.

Now, having made that decision - that is, Burton and Phillips having made that decision - the minute which accompanied it went through various drafting processes until it formed the final minute. That was then submitted to the chief executive officer, Mr Ranford. There is no evidence one way or another as to the extent to which Mr Ranford gave the matter consideration but, ultimately, he got all the documents, he got the minute and he signed the minute, and that then went on to the Minister. So it is our submission that the recommendation was a recommendation of the Director-General, and in terms of his statutory position, that is also referred to in the Mining Act, in section 11, where the Parliament has enacted:

There shall be a department of the Public Service of the State to assist the Minister in the administration of this Act, to which department there shall be appointed, under Part 3 of the Public Sector Management Act, a chief executive officer and such number of persons to be mining registrars, geologists, surveyors, inspectors - - -

GLEESON CJ: Now, to return to the paragraph on page 251, the finding that Mr Miasi: "did not play any part in forming the decision" there referred to, was, was it, a finding that Mr Miasi did not play any part in the formation by Burton and Phillips of a decision that there was no reason not to follow the Warden's recommendations?

MR BUSS: Yes.

GLEESON CJ: Is that it?

MR BUSS: That is how we understand it, yes, your Honour.

GLEESON CJ: Well, then, reverting to paragraph 91 of the judgment, what was the part taken by Mr Miasi in the giving of advice?

MR BUSS: There was not any. There was not any role that he played in the giving of advice as such. He did not take part in that decision. All he did was prepare the handwritten draft - that is reproduced in Mr Hicks' affidavit, because the actual draft has been discarded - in terms of doing an initial draft recording the decision of Phillips and Burton, and then handing that to Hicks.

GLEESON CJ: Is what happened that Burton and Phillips decided for themselves that there was no reason why the Warden's recommendation should not be followed and they then instructed Miasi to prepare a document that would reflect that decision?

MR BUSS: Yes, correct.

GLEESON CJ: So the part that was taken by Miasi was to comply with the instructions of Burton and Phillips as to the form of the minute?

MR BUSS: Yes. As to the recommendation to be made in the minute, yes. Miasi was present when Burton and Phillips made that decision but there is evidence that Miasi did not express any view in the presence of Burton and Phillips as to the respective merits of the application. Thereafter, having done the handwritten draft that is reproduced in Hicks' affidavit, Hicks then prepares his own draft which then makes it way to Burton and Phillips. Burton then takes charge of the minute and it undergoes various other drafting modifications, including to take account of legal advice. The minute and attached documents then find their way to Ranford, the chief executive officer. Ranford signs them and the minute then finds its way to the Minister. That is the process.

KIRBY J: Do those steps that you took us through earlier, from pages 150 on, indicate the different stages of the document as it was going up this ladder?

MR BUSS: Not every amendment but what - - -

KIRBY J: There do not seem to have been many amendments in the last stage, 165. The underlined portions are very few.

MR BUSS: At 165 on, the underlined portions are endeavoured - the purposes of the underlying lined portions is to formulate a reliable basis for determine to what extent - and this is apparent at the foot of page 137, in paragraph 14 of 137, where the deponent says - this is Mr Burton:

I have compared the final minute to the draft minute and only points 1 and 3 of the final minute contain portions of the draft minute. Annexed hereto and marked "RWB3" is a true copy of the first page of the final minute with the common words underlined. On the basis of the information supplied by Mr Hicks in his draft affidavit, the underlined words are the only contribution Mr Miasi made to the final minute.

So, the underlined words on page 165 and following are the contributions of Miasi to the final minute. In other words, they are the words that were in Miasi's draft which have been carried forward into the final minute.

KIRBY J: They do not appear, on their face, to indicate any - at least in my uninformed view - any bias on Mr Miasi's part. Perhaps we could hear what Mr McCusker says about that.

MR BUSS: No. I suppose the best evidence as to what Miasi wrote is set out in Hicks' affidavit, your Honour, at pages 115 to 117. At 115 at paragraph 5 Mr Hicks says:

Mr Miasi supplied me with a handwritten - - -

GLEESON CJ: Yes, now we have read that.

MR BUSS: Yes, I am sorry, I just - - -

GLEESON CJ: You had taken us to that before. But is it the case that he wrote that on the instructions of Burton and Phillips?

MR BUSS: Yes, that is right.

GLEESON CJ: Did Mr Miasi, at any stage of this process, favour anybody with his personal opinion on the merits of the matter?

MR BUSS: There is no evidence that he did. There is, however, evidence that he ceased to be involved in the process after he handed the handwritten draft to Hicks and there is the evidence of Burton and Phillips that while they were making their decision, although Miasi was present, he did not then express any view as to the merits of the various applications. Also, my learned junior reminds me, there was a conversation with Mr Pullinger, and I will refer to that, if I may, when dealing with what we say, with respect, are some errors in some of the factual material that has come from our friends for Mr Creasy.

GUMMOW J: I thought we were doing that now.

MR BUSS: I am sorry?

GUMMOW J: I thought we were dealing with these factual matters now.

GLEESON CJ: How long do you expect to require for the remainder of your submissions?

MR BUSS: No more than 10 minutes, your Honour. I am dealing with it now because we - - -

GUMMOW J: I am not criticising you; I am encouraging you.

MR BUSS: I am gratified, your Honour.

CALLINAN J: Mr Buss, can I be entirely clear about this. The underlined words on page 165 are the only contributions by Mr Miasi, is that right?

MR BUSS: To the final minute.

GLEESON CJ: And the history of that contribution was that that part of the final minute is taken from the draft minute on pages 115 to 117.

MR BUSS: That is right.

GLEESON CJ: So it is in that sense that he made a contribution to the final minute.

MR BUSS: That is right.

CALLINAN J: What appears at page 115 and 116, was that all composed by Mr Burton and Mr Phillips?

MR BUSS: No. What is at 115 to 117 was composed by Mr Miasi after he was instructed by Phillips and Burton to prepare a draft - - -

CALLINAN J: When you say composed, I thought that he was really only recording what Phillips and Burton said. There is no original contribution by him, is there, or is there not?

MR BUSS: Well, only to this sense, that Miasi wrote what is set out on 115 and 117 after Phillips and Burton told him that the recommendation to the Minister should be that there was no reason in substance not to follow the Warden's recommendation. So there is some intellectual input by Mr Miasi to the extent that he had to write out what was on page 115 and 117. It is not suggested that this was just simply dictated to him and he wrote that, that is, dictated to him by Burton and Phillips and he wrote it out.

CALLINAN J: The language is elliptical because I think you say or it is said somewhere that it was arranged that he would prepare a minute. But you are now saying that, what, he was present when Burton and Phillips had a discussion and as a result of his presences at that discussion, he wrote this memorandum? But it is impossible to say what, if any, of it is his original contribution, is that right?

MR BUSS: The point - and I think we have dealt with it certainly in our written submissions, is this - that we are endeavouring to convey is that the actual decision to be recorded in the minute was not one that Miasi made, it was a decision made by Phillips and Burton.

CALLINAN J: I understand that.

MR BUSS: It was left to Miasi to do a draft of the minute which incorporated that recommendation. So he, that is, Miasi, did not have input into the recommendation or what the recommendation should be, but he did physically and, I suppose, mentally, write the words that were set out in the draft.

CALLINAN J: The answer to my question is yes, really, is it not? We do not know what, if any, of this at 115 to 117 is his idea. I mean, some of it is persuasive and written in order to be persuasive, for example, on page 116:

There is no compelling reason why you should not follow the Warden's recommendation in this matter.

Now that seems to me, with respect, to be right, but it is written to persuade.

MR BUSS: Yes, but he is writing a draft minute to give effect - - -

GLEESON CJ: Is not the evidence, such as it is, in answer to Justice Callinan's question, on page 135, line 10? This may leave some area of uncertainty, but the evidence of Burton is that Burton and Phillips, in the presence of Miasi, decided that "There was no compelling reason to depart from" the Warden's recommendations. Then they say:

Mr Miasi was requested by Mr Phillips to prepare the draft minute to reflect this tentative position.

That is the evidence, is it not?

MR BUSS: Yes, that is the evidence. Then paragraph 9 says:

The draft minute was completed by Mr Hicks and then passed to myself. I believe that this happened in early May 1998. From that point, I know that Mr Miasi did not have any involvement in the preparation or content of the final minute to the Minister dated 30 June 1998 (the final minute) as I was responsible for the preparation and content of that minute.

So, Miasi was doing some drafting work but it was to and for the purpose of giving effect to a conclusion which had been established by others, in our submission.

CALLINAN J: But Mr Hicks wrote the minute, anyway, did he?

MR BUSS: Yes, Mr Miasi handed his handwritten draft to Mr Hicks. That is apparent on page 117, paragraphs 6 to 8.

CALLINAN J: Right, thank you.

MR BUSS: And it is also touched on on page 135, the page the learned Chief Justice referred to, in paragraph 8 where, in paragraph 8 on page 135, Mr Burton says:

I have been informed and verily believe that Mr Miasi requested another officer in the Mineral Titles Division, David Hicks, to prepare the draft minute. Mr Hicks is responsible for the mineral field in which the applications fell. I am personally aware that Mr Hicks prepared the draft minute as I liaised with him in respect to it.

And 117 of the appeal book deals with the manner in which the handwritten draft of Miasi found its way to Hicks.

Finally, then dealing with the last error of the Full Court, before just briefly dealing with these factual matters. At page 251 in paragraph 93, in sentence one Justice Sheller says:

The Minister's decision is infected, even though he acted unwittingly on this tainted advice.

Now, the reference to "tainted advice" no doubt as to the minute of 30 June from the Director-General and, in our submission, that finding is in error in that it is inconsistent with the true position in relation to Miasi and the finding that he did not play any part in forming the decision of Burton and Phillips and it was in error also, in our submission, in that it has not been evaluated in the context of all the material objective facts and, in particular, the countervailing considerations referred to in paragraph 27 of our written submissions. Now, if I can just quickly go to the submissions of the first-named first respondent, in paragraph 9 - - -

GLEESON CJ: Yes. You can just read these corrections onto the record.

MR BUSS: In paragraph 9 it is said that the minute of advice was prepared by Miasi and Phillips and was relied upon by the Minister. It is our submission that each of these statements is incorrect in that, although Miasi did prepare a short handwritten draft of the minute which was not kept, the trial judge found and the Full Court noted that Miasi did not play any part in forming the recommendation of the Minister.

GUMMOW J: We have just spent some minutes going around that mulberry bush. Why are we going around again?

MR BUSS: Yes, very well. Perhaps it is sufficient if I just simply say it then, your Honour, or draw attention to it. In paragraph 11 reference is made to the DME policy without indicating that it was introduced after the minute was sent by the Director-General to the Minister on 30 June 1998. The code of conduct was published in the gazette on 7 June 1996, which was before the date of the Minister - sorry, no, that cannot be right. I am sorry, the code of conduct was not published until 31 July 1998, which is apparent from page 77 of the appeal book.

KIRBY J: Does it say anything that one would not expect any way to be the code of conduct of Crown officers?

MR BUSS: No, it does not, your Honour. It is a tiny point. In paragraph 17 of our learned friend's outline it is said that there were:

pecuniary interests of two of the three DME officers involved in formulating a recommendation to the Minister -

We have already said at tiresome length the fact that Miasi did not play any role in formulating the recommendation and the statement in our learned friend's outline does not reflect the fact that the final minute was a minute of the Director-General, the most senior officer involved.

KIRBY J: But he did not seem to make very many changes, whereas Mr Miasi made the first draft, I mean, for whatever it is worth.

MR BUSS: In paragraph 23 it is stated that:

the Full Court was entitled to find the Minister was influenced by the DME minute in his decision.

However, in our submission, the position is that although the Full Court found that the Minister's decision was infected because he acted on tainted advice, there is no finding that the Minister was influenced by the DME minute and, in fact, the Full Court at paragraphs 94 and 96 of their judgment specifically dealt with this issue. I have taken your Honours to paragraph 96 and read from that but I should also draw your Honour's attention to paragraphs 94 and 95 which is, in essence, the rubber-stamping argument which was rejected. In paragraph 24 of our learned friend's outline there is a statement:

that the Minister was likely to adopt (as he did) the minute -

which is affected by, in our submission, the errors that we have already referred to. Yesterday, when my learned friend and I and our instructor were 10,000 metres above the Great Australian Bight, there was a further document that came from our learned friends, from Mr Creasy, in relation to come factual material which we have had an opportunity to look at last night and there are some - - -

KIRBY J: Do we have that?

MR BUSS: I assumed your Honours had it.

GAUDRON J: Yes, it came in this morning.

GLEESON CJ: Just put onto the record the respects in which you disagree with it.

MR BUSS: Yes. Well, the easiest way for me to do that is to - we have taken the liberty over night to prepare a note which responds to it, so perhaps if I could just hand that up and I will not then need to speak to it.

GLEESON CJ: Thank you.

KIRBY J: Could you identify the Creasy document so that we know exactly what it is?

MR BUSS: Yes, certainly, your Honour. It is a document which is headed "FIRST NAMED FIRST RESPONDENT'S NOTE OF APPEAL BOOK REFERENCES TO RELEVANT FACTS". It is dated 16 April 2002.

GLEESON CJ: Thank you.

MR BUSS: Those are our submissions, thank you, your Honour.

GLEESON CJ: Thank you, Mr Buss. Mr Tannin, I think you are supporting the appellant. We had better hear you now. Yes, Mr Tannin.

MR TANNIN: Thank you, your Honour. My learned friend, Mr Buss, has canvassed the critical facts in relation to the involvement of Mr Miasi at some length.

GUMMOW J: You have an ABT and Hardiman position, have you not?

MR TANNIN: Yes entirely, your Honour. We are not going to address the merits of the decision.

GUMMOW J: You are interested in powers and procedures as it were.

MR TANNIN: That is right, and the only essential point we make as to the facts as to Miasi: he had a pecuniary interest but essentially had no significant role. In relation to Mr Phillips, the somewhat forgotten Mr Phillips, he did have a role but he had no significant interest. The interest there was the interest of an adult son who was living independently, had been living independently, was 27-years of age, was not part of his household. On no conception could it be said that that was an interest. It is significant in the reasons of the Full Court - - -

KIRBY J: How did the son's interest come to light later? Somebody looked it up in a register - - -

MR TANNIN: They must have, your Honour, but it did come to light and Mr Phillips in his affidavit at page 197 explained it. If might take your Honours to how the Full Court dealt with that interest, because it is a point my friend, Mr Buss, did not deal with entirely. At page 250 of his Honour's judgment, the judgment of his Honour Justice Sheller, at line 90, it is found:

If Mr Phillips was the decision-maker, he would not be disqualified simply because of his son's interest in the shares in AuDAX.

It is accepted that the interest was not sufficient to disqualify Mr Phillips. It is then stated that with that in light of the circumstances of Mr Miasi's shareholding that there is significance. Going down to line 92 of the same page, it is held:

Mr Miasi's non-disclosure of his share holding and the interest of Mr Phillips' son, also undisclosed, strengthen the suspicion.

With respect, if it is the case that Mr Phillips' interest was not sufficient to disqualify him, it is difficult to see how the sum of zero added to any other sum makes the sum greater. There is no consistency with respect at all in that finding.

The approach of the second respondent is to indicate that this - our submissions have addressed the application of the question of apprehended bias to this decision. The thrust of our submission has been that if it is apposite to apply a test of apprehended bias to a decision-maker, regard must be had to the character of that decision-maker, character in the senses of the binding statute under which the decision is made, the character of the person in terms of person political, whether that person be for example a judicial officer or a Minister of the Crown or an officer entrusted with some other legislative function, and the test for discerning apprehended bias, if it be appropriate to look at this decision in these terms, must be modified by reference to the decision-maker.

The decisions of this Court in Jia and in Ebner - the majority of this Court have clearly indicated that some apprehension, some understanding, must be made of the character of the decision-maker, in terms of the statute and the role to be undertaken. In terms of the instant case, the decision-maker was a Minister. The statute entrusted the Minister to make a judgment. There is nothing in the statute that would preclude the Minister from taking into account matters of public interest. I have referred in detail in the submissions to the statutory context in which the decision is made, but, plainly, the public interest had to be regarded.

Within that public interest, the Minister, being a democratically elected individual, an officer of the Parliament, the person entirely responsible to the electorate for his or her conduct, would be accountable for what they did. Within that public interest, all manner of things, all manner of partial interests could be properly taken into account. It is part of the fabric of this community and the society that that should be the case. It is quite false to apply the high rigour of what is required in judicial office to officers in that circumstance. We have pointed in detail to the jurisprudence of Canada, where, in relation to this very question - - -

KIRBY J: Just before you leave Australia, I take the point - and it has been said in the refugee cases - that you cannot ignore the fact that the donee of the power is a Minister - the Minister sits in Parliament as accountable politically, can answer to the Parliament, and so on - but if that person is a donee of power under statute, like every other donee of power, I understand that our Court does not take a different view: that person must exercise the statutory powers in accordance with the statute and for the purposes of the statutes, and is answerable to the courts for such performance.

MR TANNIN: Yes, of course, with respect, and that is part of the fundament of our submission, that - - -

KIRBY J: So he is not released from that simply because he is accountable in the Parliament; that is just an added source of questioning, though one takes into account the fact that he is a Minister and he is accountable in that fashion?

MR TANNIN: No, with respect, and we do not argue that the statute be ignored. That is one of the circumstances of the decision and it is one of the circumstances that indicates that upon the spectrum of approach that we should take, you can see that the Minister, applying a statute, applying the statute in this very context, must be seen in a slightly different light to that of a judicial officer who is required to act with absolute impartiality. This is a different context.

Why I was taking your Honours to the Canadian jurisprudence which we have set out in detail in our submissions is that in Canada - and I accept in Canada, with respect, the test seems to have been constructed by reference to a question of probability rather than possibility; we are not urging any change to the ambit of the test - it is accepted that there is a spectrum upon which these decisions must be viewed. At one end is the judicial decision; at another is the policy legislative decision. In this context we are somewhere in the centre in relation to a Minister. Now, bearing in mind that there has to be adaption, the question is to what extent adaption takes place.

GAUDRON J: Adaption of what? Again, it seems to me, we are straying into the ether, in a sense. Are we talking about adaption of the rules of natural justice, because it is quite clear that the content of those rules can vary? Are we talking about adaption of the reasonable apprehension of bias and, if so, in that field, are we talking about bias due to prejudgment or what? You see, I have some real difficulty with the notion reasonable apprehension of bias due to interest. Either there is interest or there is not interest and that seems to me to be the end of the matter really. One knows that if there is interest, then, assuming it is an interest of the relevant kind, there is a reasonable apprehension and that is all there is to the matter. So what are we adapting?

MR TANNIN: Your Honour, we have a judgment here that grafts onto what occurred: an analysis in terms of reasonable apprehension of bias.

GAUDRON J: Yes, but why should we proceed from the basis of that judgment. It is under attack and I would have thought there is a real question whether you can graft what has been attempted to be grafted onto that doctrine, whether one is maintaining the distinctions that have evolved over the years as to the bases on which decisions can be attacked. I mean, I just tell you this, Mr Tannin, because I do not understand your submissions at all. I just do not have the frame of reference.

MR TANNIN: If your Honour pleases, the spectrum that we would seek to use to understand this issue contemplates a diminishing standard in terms of apprehension of bias, depending on the nature of the decision, the statutory context and the decision-maker. At one - - -

GAUDRON J: Yes, but now are we talking about prejudgment or are we talking about interest? If we are talking about interest, I would have thought interest is interest and, unless there is some specific statutory provision, interest is interest.

MR TANNIN: Your Honour, the test that we had proposed in the submission took account of the fact that where in a ministerial context such as this one a ministerial adviser had himself or herself a profound interest and they were intimately involved in the decision, taking, for example, the earlier discussion that your Honours had with my learned friend as to the example of corruption, it could be the case that somewhere in the process what was provided to the Minister by reason of the proximity of the person advising could taint the decision, could taint the interest or ascribe that interest to the decision-maker.

GAUDRON J: I do not understand "taint".

GLEESON CJ: We seem to be in the area of metaphor here.

MR TANNIN: Yes.

GLEESON CJ: "Taint"; "infection". You need to be a little more precise.

MR TANNIN: Your Honour, in this case there is no interest by the Minister. There is no suggestion that the Minister made a decision anything other than on the merits.

GLEESON CJ: You may be right about that and maybe this case can be decided fairly easily on the facts.

MR TANNIN: On that point.

GLEESON CJ: But even so, we have to state general principles. We have to deal with the other cases that might arise, so, we have to know what you mean when you are talking about administrative decisions being "tainted".

MR TANNIN: If your Honour pleases. The decision that is relevant is the decision of the Minister. At the point where the Minister has some interest, actual bias occurs or indeed fraud.

GAUDRON J: Again, I would not necessarily assume that. I know there are ministerial standards of conduct but if the Act requires the Minister to make a decision then the Act requires the Minister to make a decision. Perhaps it would be wise for the Minister, perhaps it is necessary for the Minister to say, "Look, I have this sort of interest in this matter" or it may be, "The directors of Hot Holdings are members of the same club as I am" or something of that nature, but I would have thought you have to attack the question whether the Act in fact in reposing an obligation in the Minister, unless he is delegated, requires complete absence of interest.

If it does, that is one thing, one thing follows. If it does not it seems to me you get into the territory which was earlier discussed, fraud, improper purpose or the like.

MR TANNIN: Your Honour, one method of analysis is to look, in terms of the Craig paradigm, at what the Minister is doing. It would be an irrelevant consideration for the Minister to have regard to the question whether the applicant for a particular licence or exploration permit or whatever, was a member of the party or his wife's best mate.

GAUDRON J: It may be irrelevant to have - it would certainly be an irrelevant consideration as such, depending - but we are not talking about irrelevant consideration. This is not the area of debate in this case, is it? The area is suspicion of - and again, I do not understand this - bias. It is not suspicion of prejudgment, is it? We are talking in a different role and I, for my part, would want to know - or perhaps this is more appropriate for Mr McCusker - why it is that the Minister must be free of interest, in any of the senses in which that term is used in the rule of natural justice or the rule against bias.

MR TANNIN: If your Honour pleases, the Minister must make decision in good faith.

GAUDRON J: Yes, that is to be accepted.

MR TANNIN: It would annihilate good faith for the decision to be tainted by actual bias on the part of the Minister.

GLEESON CJ: Would that include increasing his prospects of re-election?

MR TANNIN: It might. The question is, on the one hand, whether the Minister is looking to see whether a decision might be appropriate and popular in the community. It might be another thing in the circumstance where the Minister has received fortunes in donations to a party or other political favour. These are issues which is why we have created this fictional observer to look at the material objective facts and determine, in their application to the case, how it is that the interest might be affected and it is why, we submit, there must be adaption from case to case by reference to the statutory character and the role of the person making the decision, of that test.

The concession we made in the submissions, which does not seem at one with the debates this morning, at least, is that in some circumstances, where a ministerial adviser has profound interest that is not disclosed, it can - forgive the metaphor - taint the information. In this case, it could not and did not.

GLEESON CJ: I notice the time, Mr Tannin. We will adjourn until 2.15, but how long do you think you will require for your submissions?

MR TANNIN: I will finish before lunch, your Honour.

GLEESON CJ: No, we are going to adjourn now.

MR TANNIN: Thank you, your Honour.

GLEESON CJ: Now, what about you, Mr McCusker?

MR McCUSKER: Your Honour, I hesitate to make a guess, but I would say an hour and a half.

GLEESON CJ: All right. Well, there is no need for us to sit any special time. We will adjourn until 2.15.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Yes, Mr Tannin.

MR TANNIN: If your Honours please, I make three further points in our submissions. The first is to address the scope of the writ of certiorari. In our submission, it has been accepted in this Court, and it is plain from the judgment of Craig v South Australia in the passage at page 175 and 176 of the reported judgment, that the writ of certiorari extends to the:

quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error -

and importantly for these purposes -

failure to observe some applicable requirement of procedural fairness.

In our submission, procedural fairness traditionally involves two principles: the hearing rule and the bias rule. It is plain from the examples cited in the Craig v South Australia decision, a case of Stollery v Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509, that bias as a species of procedural fairness has been long accepted by this Court. Stollery was a case where the Greyhound Racing Board was a New South Wales body charged with the control of greyhound racing. It had rules. There was a greyhound owner of the association who was a member of the board and he received an envelope from one of the people involved in the industry which contained forms nominating various dogs, the races, together with $200 in notes.

Now, at all times the number of dogs to be nominated for races was determined by the association. The manager asked for an explanation as to why he was given this money and he was told it was a gift in respect of his recent marriage. He explained that he did not take gifts as an official and it was the very thing he was fighting against. He reported the matter to the board. The board had an inquiry about the manager's report and the manager was then called on to explain.

The manager was present at the board's proceedings. The board heard the matter, the manager left. The manager was always present and the owner went back and forth into the proceedings as the board saw fit. The court held - and I am just really dealing with the headnote:

That the manager was in the position of an accuser in the proceedings and was disqualified from acting as a member of the Board in relation thereto.

(2) That notwithstanding that there was no dispute -

about his conduct, there is no suggestion that he influenced the proceedings. His mere -

presence during the deliberations and decisions of the Board was inconsistent with the principles of natural justice.

Now, in my respectful submission, that is an apposite example of apprehended bias and plainly, in our submission, the constructs of Craig can be met.

The second point we make is that the discomfort that arises in applying rules of apprehended bias arises because in the analysis of the Full Court here, what was done was to apply automatically the rules of bias and apprehended bias that applied so rigorously to judicial officers to ministers of the Crown, that is, there was no flexibility in the adaption of the rule and that is why the second respondent has put forward an analysis that relies on some spectral approach, that is, an imaginary line from the very highest point of judicial undertaking down to the legislative end.

The hard point is where to put this or, indeed, any other case. It is not easy to say or appropriate, with respect, to say these are the bright lines we will draw and within which all things will fall or will not fall. In this case and in every case, with respect, the key factors are the nature of the decision-maker's decisional task, that is done by reference to the statute; the character of the decision-maker, in this case a Minister who has appropriate regard by reference to the statute to the public interest, but also to the public interest by reference to the political interest and it is a question then of determining how bias or apprehended bias might be applied in that context.

The submission of the second respondent, in its written submission, has gone so far as to indicate that in respect of those who are not judicial officers, the adopted test must be less. It may go down to nothing in some circumstances, but there must be, with respect, some room for attributing the interests of those who are advisers in the close, direct sense.

GUMMOW J: I am not sure why you rely on Stollery.

MR TANNIN: Well, only as an - - -

GUMMOW J: The manager was a member of the board.

MR TANNIN: I beg your pardon, your Honour?

GUMMOW J: The manager was a member of the board, was he not?

MR TANNIN: Yes, he was.

GUMMOW J: And it was a collegiate decision.

MR TANNIN: The only point we make, your Honour, is that it is an example of the fact that, in respect of Craig, the concept of procedural fairness must include an analysis of bias. That is the way we say the Court should look at it. Now, if I might return to the - - -

GAUDRON J: Well, assuming that that rule is applicable. That is what Craig says, an applicable rule.

MR TANNIN: Your Honour, the rule against bias is - - -

GAUDRON J: But a statute could exclude the rules of - I will call them, natural justice - in part or absolutely.

MR TANNIN: Yes, it can, with respect, but it did not, in this case.

GAUDRON J: Well, it did not expressly, you say.

MR TANNIN: That is right.

GAUDRON J: Now, I wonder, though, when you give a power in terms that it must be exercised by a Minister, whether that necessarily means it must be a Minister who has no interest in the subject matter of the decision. I can well understand it in special tribunals, administrative tribunals - I can well understand that where it is tribunals, or people are appointed to exercise the powers that might otherwise have been exercised by a Minister, one assumes that is not only to relieve the Minister of the necessity, but to set up tribunals or decision-makers with particular attributes that we associate with independence and impartiality.

MR TANNIN: If your Honour pleases, in relation to Ministers the application of the rule of bias where the statute does not expressly or otherwise exclude that rule would at least, in our submission, require that the Minister not act in his own pecuniary interest.

GAUDRON J: One knows that. That is what is called fraud or improper purpose, and to obviate any possibility that he or she will be challenged it may well be prudent practice to declare an interest, but is there any decision here or abroad which indicates a decision-making power conferred on a Minister is one that is only to be exercised by a Minister who has no interest in the matter?

KIRBY J: I think this matter came up in the case of Re Patterson; Ex parte Taylor where the Minister was the donee of the statutory power to remove a person who was not a citizen from Australia and in the course of the facts of that case it was revealed that because the Minister had had some involvement in an earlier part of the decision-making process the decision was delegated to a parliamentary secretary to make the relevant decision, which does not really answer her Honour's point but it indicates that at least those who were advising the Minister said, "Well, you are the donee of power. Obviously, you cannot make a decision in which you have a personal or proprietary family interest. If it is one where you would be disqualified by principles of administrative law from deciding it, then there has to be a way around the problem." And the way around the problem found in that case was to delegate the power to another Minister.

MR TANNIN: It was always accepted in this case, it appears from its conduct, by the Minister that procedural fairness was required.

GAUDRON J: Yes, but what aspects of procedural fairness?

McHUGH J: If you try and give some content to the word "bias" which always helps, there are only two categories that are arguably applicable here, are there? First of all, an apprehension that he failed to bring an open mind to the decision or, two, that he was influenced in his decision by his or some other person's interest. So, it is a question of bringing an open mind or that he was influenced by his or somebody else's interest which he took into account.

MR TANNIN: With respect, that is correct.

McHUGH J: None of those apply.

MR TANNIN: We do not say they apply in this case but we do submit that the question of bias, whether it be actual or apprehended, is an element of procedural fairness that can be owed by Ministers of the Crown.

GAUDRON J: "Can be owed" is no difficulty in that proposition but what I question is whether it is always owed and that, would seem to me, cannot be answered as such. One has always to look at the legislation, I should have thought. For my part, I would have thought that once you locate a decision within the government and political processes, as this Act does, it does not automatically follow that the decision-maker must be free of interest. It would follow, certainly, that he or she should not exercise that power in his own interest, but that is a different question.

MR TANNIN: Your Honour, the submission we made was that if the power is exercised in the example your Honour has given, in the Minister's interests - in the direct pecuniary interests - - -

GAUDRON J: Then it is a fraud, that is a fraud.

MR TANNIN: That is patently fraud and that also - - -

GAUDRON J: That is right and the decision will be set aside.

MR TANNIN: It would also, in our submission, amount to a breach of procedural fairness in that it would amount to actual bias.

GAUDRON J: Yes, if the rules apply, but I am asking you the earlier question, why do you assume that that aspect of the rules of procedural fairness or the rules of natural justice does apply? Are there any decisions saying that that aspect of the rule applies to decision-makers who are located, really, in the centre of the political processes?

MR TANNIN: In this instance, your Honour, we have a Minister of the Crown, albeit a politically operative individual, who was required to exercise powers and prerogatives - - -

GAUDRON J: And is not, by law, required to conform to any particular standards, is he - I mean, in his personal behaviour? You see, it seems to me, one certainly has requirements as a general rule for public disclosure by politicians of their pecuniary interests and from time to time there have been ministerial guidelines which purport to require Ministers to divest themselves of interests which might come into conflict with the discharge of their duties, ministerial duties. The fact that you have those requirements imposed, usually at a government level or even at a statutory level, suggests to me that maybe you cannot say every Minister who has a power to make decisions must be free of interest in the subject matter of the decision which he or she is required to make.

KIRBY J: But do you not go back to first principles, that you have a statute and you would impute to Parliament that if Parliament chooses the Minister as the repository of the power it would impose on the Minister no different principles than it would impose upon another person? The obligations of revealing your interest are duties that are imposed on politicians as politicians, but once they are repositories of power afforded to them by Parliament they are in a different league. They are pursuing the will of the Parliament, not just political or party political matters, machinations and things like that. They are donees of power from Parliament.

McHUGH J: They may be donees of power, but does not first principles declare that the Minister can take into account in the exercise of discretion any matter that he or she wants to, unless the statute expressly or impliedly forbids it? That is the general rule, is it not?

MR TANNIN: That is correct.

McHUGH J: Now, suppose a Minister has a power to allocate money and decides to make grants in electorates which favour his party. Does that set aside the decision?

MR TANNIN: It depends how the decision is characterised. The Minister in this case must look to the public interest. The public interest is the greater good. It may be that in according to the public interest appropriate weight, persons on his side of politics may gain. It may be that by granting this exploration licence to Hot Holdings, the State of Western Australia may prosper, and it may be that the Minister may gain by that. But none of that, with respect, is antithetical to a proper acceptance and application of the public interest. It gets messy where the interest is direct and pecuniary, which is why we submit that in relation to Ministers there has to be some adaption of the test of bias, or apprehended bias, to the character of the decision-maker and the statute under which the decision is being made. It cannot be said, with respect, that some absolute cut-off applies.

KIRBY J: Nor can it be said that the Minister is a completely free agent just because he is a Minister. If he is receiving powers from Parliament, he must act either as Parliament has expressly stated or as it would be implied that Parliament intended. Ultimately that is for courts to say. All this was discussed in Re Taylor, because the Minister there was the repository of the power under the Migration Act and it was said because the Minister was answerable in Parliament that was it, but that did not find favour with the majority of the Court. I do not think it is a good principle at all. Ministers, as politicians, are answerable to Parliament but when we they act under powers given to them by an Act of a Parliament, they are in a special position. They are no different from other statutory office holders, as far as I am concerned.

MR TANNIN: With respect, they have to be different to the extent that they are not as detached as judicial officers.

KIRBY J: They do not have all of the duties that judges have, and the expectations of them would not be the same.

MR TANNIN: With respect, your Honour, once that is acknowledged, it is then to determine how one sees them in the applicable spectrum. In our submission, the fact that they are a Minister, the fact that they are politically accountable, cannot of itself be enough to say that in the same circumstance where a statute reposes a power on the Minister, where the Minister, as in this case, accepted that there was a duty of procedural fairness in respect of the parties who complied with that in terms of providing to them an opportunity to address the concerns that were before him, that the rules would entitle the Minister in naked self-interest, without regard to the public interest, without regard to the purpose of the statute, to make a decision.

GAUDRON J: No one is saying that he can, but that is a different area of discourse, I should have thought.

GLEESON CJ: What is the point that you are making relevant to this case?

MR TANNIN: Your Honour, we have a situation where the Full Court has applied the rules of apprehended bias as if they were pertinent to the standards of judicial officers. In our submission, that was wrong, that the standard must be adapted. The third point we make, and the final point we make, is that with reference to the role of advisers, the discussion in this Court today has been to exclude the role of those who may be involved other than the Minister. Our concession in our - - -

GUMMOW J: Why would a judicial officer have been disqualified on these facts?

MR TANNIN: Sorry, your Honour.

GUMMOW J: Why would a judicial officer have been disqualified if the judicial officer had been the relevant decision-make on these facts? Just because he was a shareholder?

MR TANNIN: We would not say he was. In our submission, in relation to Miasi, he had no role in the decision; in relation to Phillips, there was no interest that could possibly have affected the judicial officer. The analogy drawn by the Chief Justice at the outset of these proceedings, it was Miasi was really in a secretarial role. Your Honour Justice Gaudron referred to Miasi as a record-keeper. They are, with respect, entirely apposite descriptions. No judge could ever be disqualified in those circumstances and there is no basis for any reasonable apprehension in this case. They are my submissions.

GLEESON CJ: Thank you, Mr Tannin. Yes, Mr McCusker.

MR McCUSKER: Your Honours, I rise with some reasonable apprehension, not of bias, but that your Honours will wish me to address, among other things, the question of what rubric this particular decision fell under.

GLEESON CJ: Yes, we do wish to hear you.

MR McCUSKER: I am sure. Your Honours, our submission is that if a hook has to be found for it - and, indeed, Craig suggests that is so - then procedural fairness is the hook on which a number of decisions of this Court really hang, but not a decision which is directly in line with the facts of this case. Before I come back to that, may I first explain some matters to your Honours which perhaps have not been highlighted. First, there has been reference made to the trial judge's conclusions. It must be remembered that the trial judge did not have the advantage, which the Full Court did have, of the evidence, given by affidavit, of Mr Phillips.

That evidence was significant in two respects - and, incidentally, the evidence was obtained very belatedly, and some months, I think it was, after a request had been made for information of both Mr Phillips and Mr Miasi - - -

GLEESON CJ: What about the affidavit of Burton? Did the trial judge have that?

MR McCUSKER: The trial judge did have that, yes, your Honour, but what Mr Phillips' affidavit did were two things, really. First, it explained the extent of his interest, but perhaps more importantly - - -

GLEESON CJ: His son's interest.

MR McCUSKER: His son's interest, I should say. But perhaps more importantly - - -

KIRBY J: It is pretty remote, is it not, that an adult son, living separately - - -

MR McCUSKER: Yes.

KIRBY J: I mean, many parents would not know what an adult son of 27 - what share holdings he had.

MR McCUSKER: He did, in his affidavit, mention, if it is relevant, that his son had had an accident and was living on compensation, and had been in touch with him and told him of the investment he had made with the compensation money, which included the investment in AuDAX shares.

KIRBY J: But would it not be reasonable for a parent to say, "Well, that is his business"?

MR McCUSKER: Certainly, your Honour, but - - -

KIRBY J: It is getting a bit remote to say that a parent who happens to have duties should be on the alert for every cousin, sister, aunt - - -

MR McCUSKER: Yes. I accept that without question, your Honour. As, I think, Justice Sheller really put it, it is just an additional feature.

GLEESON CJ: Why is it additional, Mr McCusker? Do you accept what is said by Justice Sheller on page 250, at lines 13 and 14, paragraph 90?

if Mr Phillips was the decision-maker, he would not be disqualified - - -

MR McCUSKER: Yes, your Honour, I do, that is, in the sense that I think Justice Sheller meant it there. It comes directly after a reference to what was said in Dovade at the previous page and - - -

GLEESON CJ: What I wanted to ask you is this: if that is right and if Mr Phillips would not have been disqualified, why was it necessary for Mr Phillips to disclose to the Minister this non-disqualifying fact?

MR McCUSKER: I was going to say, your Honour, we would say that it would not follow necessarily that he would be disqualified. It would depend then upon an expiration of the nature of the interest and whether it may be such as to give rise to reasonable apprehension.

GLEESON CJ: That seems a fairly categorical statement at lines 13 and 14.

MR McCUSKER: It does, yes.

GLEESON CJ: What I want to understand is the process of reasoning that followed it in the Full Court. If you accept that Mr Phillips was not disqualified because of his son's shareholding - - -

MR McCUSKER: But not simply because of his son's interest.

GLEESON CJ: Yes - I am sorry, what other interest did Mr Phillips have apart from - - -

MR McCUSKER: No other interest, but I think - - -

GLEESON CJ: What does the word "simply" add?

MR McCUSKER: - - - I put emphasis on the word "simply" - - -

GLEESON CJ: Yes, what does the word "simply" add to that sentence?

MR McCUSKER: To mean that the mere fact that his son had an interest would not of itself cause a decision-maker to be disqualified.

GLEESON CJ: What else might have caused Mr Phillips to be disqualified?

MR McCUSKER: It would be then a question of looking to see the extent of the connection between him and his son and whether it could be fairly said that his son's interest might have influenced his approach to the making of the decision.

GLEESON CJ: I must have misunderstood what Justice Sheller was saying.

MR McCUSKER: It is a question of emphasis, your Honour.

But could I come back to what I was saying about Mr Phillips' affidavit. At page 200, the top of the page, he goes beyond what Mr Burton had said about the decision-making process. He says:

In relation to Mr Miasi, I confirm that he did not influence my decision to support the Warden's recommendation.

It should be noted he does not say he did not take part in discussions and, furthermore, he goes on to say:

In discussions on the matter Mr Miasi did not express a view as to the merits of the competing applications.

Now, what must be borne in mind is that the Warden's recommendation did not express a view as to the merits of the competing applications. The Warden's recommendation simply set out the order of priority - - -

GLEESON CJ: As a result of the ballot.

MR McCUSKER: As a result of the ballot, yes. But if we go to Mr Burton's affidavit at page 135, he says at the top of 135, starting at paragraph 6 of the previous page:

6. After due consideration, Mr Phillips and I decided that subject to issues raised in submissions and legal advice being obtained in the future the minute should support the Warden's recommendation.

Now, I interpolate: he does not say that Mr Miasi was not a party to the discussions which led to that conclusion.

GUMMOW J: The question then is, what do you mean by "party", you see?

MR McCUSKER: I am sorry, your Honour?

GUMMOW J: The word "party" carries a lot of weight. What does it mean?

MR McCUSKER: It does, indeed. It raised a question as to what it means. He said:

This was because we believed that it was a considered decision based on the various court rulings and the submissions made to the Warden by the competing applicants. There was no compelling reason to depart from it. Therefore Mr Miasi was requested by Mr Phillips to prepare the draft minute to reflect this tentative position.

What it does not say, significantly, is, "Did Mr Miasi take part in this discussion?" and there was no discussion about the competing merits - - -

GUMMOW J: Is there a finding of fact that he did?

MR McCUSKER: That he did take part in the discussions?

GUMMOW J: Yes.

MR McCUSKER: Yes.

GUMMOW J: Yes, this is a trial, was there a finding of fact about it?

MR McCUSKER: I am sorry, your Honour, was there a finding?

GUMMOW J: Was there a finding of fact that he did? Even if there was not, you cannot say, "Oh, whoopee".

GLEESON CJ: What did Justice Heenan say about this?

MR McCUSKER: He says at page 22 - this is a finding which was, as I say, made without the benefit of Phillips' affidavit - line 25:

However, the evidence which now is available shows that Mr Miasi did not play any part in forming the decision of Messrs Burton and Phillips that the draft minute should support the warden's recommendation.

GLEESON CJ: Are you seeking to overturn that finding?

MR McCUSKER: No, I am not, your Honour. I am seeking to explain the finding, not to overturn it. He "did not play any part in forming the decision" and that is based, simply, on the affidavit of Mr Burton in which he says that he and Mr Phillips made a decision that there was no compelling reason to depart from the Warden's recommendation because they believed that it was a considered decision based on court rulings and submissions, et cetera, so there was no - - -

GUMMOW J: Was Mr Burton cross-examined?

MR McCUSKER: No, your Honour.

GLEESON CJ: Mr Miasi never made any decision about anything, did he?

MR McCUSKER: We do not know, your Honour - that is the problem - because Mr Miasi has never given any of it in signed affidavits significantly.

GLEESON CJ: As far as the findings of fact go, the decision to grant the mining tenement was the decision of the Minister.

MR McCUSKER: Quite.

GLEESON CJ: The Minister was acting directly on the advice of Mr Ranford.

MR McCUSKER: Yes.

GLEESON CJ: Mr Ranford, in turn, had received a draft minute proposing to him that he should give that advice to the Minister.

MR McCUSKER: Yes.

GLEESON CJ: The decision that the draft minute should make that proposal to him was the decision of Mr Phillips and Mr Burton.

MR McCUSKER: The question, however, is whether - - -

GLEESON CJ: So far that is right, is it?

MR McCUSKER: So far that is right, yes, your Honour.

GLEESON CJ: Yes.

MR McCUSKER: Certainly, that is, they decided, but what was Mr Miasi doing then? Mr Miasi is not a clerk. He is a senior officer, the manager of the Tenure Branch. What, I would submit, with respect, is that his Honour Justice Heenan's view or finding that the evidence available shows that Mr Miasi did not play any part in forming the decision of Burton and Phillips, et cetera, needs to be looked at in the light of that evidence which, as your Honour Justice Gummow said, is untested by cross-examination, but also in the light of the further evidence of Mr Phillips who made it quite clear that there were discussions, we say, in which Mr Miasi took part. The language is somewhat cute. At page 200 he says that Miasi "did not influence my decision", that is simply a subjective view. It would have been easy to say, "Miasi took no part, he sat there as a clerk" - - -

GAUDRON J: He said he "did not express a view as to the merits of the competing applications".

MR McCUSKER: No one expressed a view as to the merits, it would appear, because they took the view that the Warden had already done the job.

GLEESON CJ: Mr McCusker, there was no cross-examination of Mr Phillips, was there?

MR McCUSKER: No, there was not.

GLEESON CJ: And there would have been an opportunity to resolve any suggested ambiguities in his evidence by cross-examination?

MR McCUSKER: Yes, there probably would, although the affidavit came in after the trial before Justice Heenan.

HAYNE J: But if you wanted to make a suggestion that the affidavit was "cute" it was incumbent on you side to put it to the witness so he could deal with it. Why should you be heard now in this Court to be making submissions of that kind?

MR McCUSKER: Your Honour, with respect, the submission I make is simply the words of the affidavit do not say - neither this nor the previous affidavit, say that Mr Miasi took no part in the discussions. In fact, in our submission, it is clear if one goes back to Mr Phillips' affidavit at page 200, the second line:

In discussions on the matter Mr Miasi did not express a view as to the merits of the competing applications.

So, my submission is that it is a clear inference from that. We did not cross-examination Mr Phillips on a statement, "Mr Miasi took no part in the discussions" because that is not what Mr Phillips said. He said, simply, "In discussions, Miasi did not express a view as to he merits of the competing applications."

GLEESON CJ: Do you support the view expressed on page 251 that this is all irrelevant?

MR McCUSKER: Your Honour, not this particular aspect. What we do support at page 251 is the finding that Mr Miasi did not play any part in forming the decision because that is a subjective view expressed by both Burton and Phillips which the courts have said is of itself not relevant. So that if a decision-maker says, "I was unaffected by, for example, my personal interest", or something else - - -

GLEESON CJ: But neither Burton nor Phillips had any personal interest.

MR McCUSKER: No, but in this case the question is not whether they had a personal interest but whether their view was affected or the decision was affected - "influenced" is the word they each used - by Mr Miasi. Now, to say, I was not influenced by Mr Miasi in reaching a decision is, in our submission, to say something which is beside the point.

McHUGH J: Why? Why is it beside the point?

MR McCUSKER: Because, in our submission, that is a subjective view which is held by the persons who are going to make a decision.

McHUGH J: Yes, but what decision? They are not making any relevant decision.

MR McCUSKER: No a decision as to what they should put in the draft minute.

McHUGH J: But that is not the decision. You are in the wrong territory. It seems to me you have really to face up to the facts. If you are going to succeed in this case it seems to me you have got to break new ground in the law of procedural fairness. You have to go so far as to say that a Minister is to have bias imputed to him when he knows nothing about his decision-maker's bias but the law will take him to be infected by it. That will be new ground.

MR McCUSKER: Your Honour, at page 4 we have our grounds on which the certiorari was sought and you have been taken to it. You will note there that our contention is that the decision:

gives rise to a reasonable apprehension of bias -

that is the relevant part -

as a consequence of which the applicants were denied procedural fairness.

We go on to give particulars of that.

GLEESON CJ: Now, the opening lines of those particulars seem a little cute. To say that:

The decision of the Minister was in effect the adoption of a recommendation in the -

minute might mean one of two different things. It might mean that which is undoubtedly the case, that is to say, that a decision was to adopt the recommendation or it might mean the decision was a mere rubber-stamping of the recommendation. Which of those two different things does that mean?

MR McCUSKER: The first. It is not a rubber-stamping. Your Honour must bear in mind, of course, that the writ of certiorari was taken out before all the known facts were with us. Indeed, the argument before Justice Heenan took place before we knew anything about the position of Mr Phillips and, importantly, Mr Phillips' statement that he was not influenced in making his decision but took care to say that in discussions on the matter Miasi did not express a view which leads to the clear inference that Miasi was party to the discussions. He was not just a clerk.

GLEESON CJ: But why would you not equally correctly say the decision of the Minister was, in effect, the adoption of the Mining Warden's recommendation?

MR McCUSKER: Why we say "in effect", your Honour, is because from beginning to end, the original minute, the recommendation to adopt the Mining Warden's recommendation effectively remained there. Certainly, there were changes in the minute, quite elaborate changes dealing with the background to the matter and the submissions that had come in, but the essence of the matter remained the same throughout. The advice to the Minister was "Grant to Hot Holdings".

GLEESON CJ: That is one of the superficially surprising things about the facts of this case. If the Minister had gone against the Mining Warden's recommendation, one might expect people to be raising their eyebrows, but the Mining Warden had a public hearing and for the reasons that he published he promulgated a certain recommendation, then all the departmental officers who considered the matter, evidently, decided from that from their point of view they could see no compelling reason why the Minister should not accept the recommendation and the Minister accepted the Mining Warden's recommendation. It does not look very sinister.

MR McCUSKER: Your Honour, there is more to it than that though. The Minister, of course, is entitled to take into account a number of matters, including public interest matters in making his decision. He is not bound by, as everyone agrees, the Warden's recommendation. The Warden's recommendation here was not a canvassing of the respective merits of the applicants. It was simply based upon the order of priority.

The Warden's recommendation was based on a canvassing of the question of who was first in time, essentially, in this case and the compliance or non-compliance under the Act by the applications themselves, whether they were complete in form and also the question of whether proper notice had been given and so on. Your Honours will be familiar with all of that, but nothing to do with the merits of the applications. So, the Warden was not recommending to the Minister, "I think Hot Holdings is the best application".

GLEESON CJ: Yes. I am not sure what "merits" means in the context of these applications for mining tenements.

MR McCUSKER: No. Legal matters only.

GLEESON CJ: I can see who gets in first.

MR McCUSKER: It is who gets in first and whether the one who has got in first has complied with the requirements of the Act. It is as simple as that. The Minister's task is a broader task. He must look at considerations other than merely compliance with the Act.

GLEESON CJ: I suppose a sort of consideration he might look at is whether or not a particular applicant has the financial resources to develop the tenement.

MR McCUSKER: Quite so, your Honour, and that is exactly what was put forward in this case in the submissions by my client, the contention that Hot Holdings was no more than a speculator. My client was one who was prepared to take on the job of developing the tenement.

CALLINAN J: Mr McCusker, it is only some decisions of the Minister that are made on the basis of the Warden's recommendation. The Warden himself can grant some kinds of licences, can he not?

MR McCUSKER: Yes he can, your Honour, yes, but this is not one of them.

CALLINAN J: An exploration licence or a mining lease are the only two - - -

MR McCUSKER: That the Minister must decide.

CALLINAN J: And the only statutory prescription is that there be a Warden's recommendation in respect of those, is that right?

MR McCUSKER: Recommendation plus report. It amounts to the same thing, yes. That is the precondition of the - - -

CALLINAN J: And no other matters are specified as ones which the Minister must take into account.

MR McCUSKER: No.

GLEESON CJ: I think I read somewhere, Mr McCusker, it may even have been in the earlier decision of this Court between these parties, that the Warden's report was very lengthy and elaborate.

MR McCUSKER: It was, your Honour, because the Warden's report simply - not only, but mainly, embodied the various lengthy written submissions that were put to him by all the parties before the Warden.

GLEESON CJ: It ran into some 90 pages, I think.

MR McCUSKER: Yes, but the 90 pages comprised, as sometimes does happen, simply a regurgitation of the written submissions of the parties, which were themselves quite lengthy, and then a conclusion in relation to each of those written submissions. So it certainly was not a canvassing of the merits in the way that one would normally understand. It was a canvassing of the legal debates - - -

GAUDRON J: What merits could be canvassed?

MR McCUSKER: For example - well, he could not canvass those merits, of course not.

GAUDRON J: No.

MR McCUSKER: But why I took you to the statement by Mr Phillips in his affidavit was that he was referring to Mr Miasi as not having discussed the merits. The point I am making is that no one else discussed the merits either. They simply decided that they would recommend that the Warden's recommendation be adopted. The Warden's recommendation was no more than, "This is the order of priority and these parties, in that order, have complied with the requirements of the Act."

GLEESON CJ: I have to tell you that unassisted by submissions, I would have understood that affidavit to mean that Mr Miasi did not express a view on who should get the mining tenement.

MR McCUSKER: Your Honour, maybe that was intended to be the view conveyed, but certainly when one looks at the wording of the affidavit, coupled with the fact that Mr Miasi significantly, we say, has not seen fit to go on affidavit to say what part he played, if any, and when. He was clearly there for some purpose other than a scribe. He is a senior officer. You do not invite a senior officer along simply to sit there mute and write out whatever they finally decide.

GLEESON CJ: What was his relationship in terms of the structure of the department to Mr Phillips and Mr Burton?

MR McCUSKER: Phillips was the senior, Burton was next and Miasi was below him.

GLEESON CJ: So Miasi was subordinate to both - - -

MR McCUSKER: To both of them, yes, but nevertheless a manager - an important officer. As I think Justice Sheller said, a senior officer within the department.

GLEESON CJ: And where did Hicks fit in?

MR McCUSKER: Hicks was below him. Hicks, in our submission, on his own affidavit, did no more than take the draft that was handwritten by Miasi and convert it into a written draft minute.

GLEESON CJ: So the order of seniority was Ranford, Phillips, Burton, Miasi, Hicks?

MR McCUSKER: Yes. There might have been one or two fitting in under there, but they are irrelevant for present purposes.

KIRBY J: In my experience it is not at all unusual for very senior officers in the presence of Ministers, going back to my law reform days, to sit there totally silent but to take the minutes keeping in mind V.I. Lenin's words that the person who writes the minutes rules the organisation.

MR McCUSKER: Yes. That is often the case, although this, of course, was not a Ministers meeting but a meeting of three senior officers - - -

KIRBY J: Yes, but all the more reason. They will speak in their pecking order, but their relative silence does not matter if they have control of the record.

MR McCUSKER: That is very true, your Honour. Could I just mention while we - I think there was some discussion with my friend Mr Tannin about the Minister and his statutory function. Section 10 may be of interest to your Honours because it provides that the Minister is "a corporation sole, with perpetual succession". So it is not just a political person who is appointed in a capacity as an individual. The Minister is a corporation sole and it has already been said there is a power of delegation under section 12, so if the Minister - - -

GUMMOW J: What is the effect of a provision like that, that one sees from time to time?

KIRBY J: Presumably, it is to prevent the problem of the Minister having to do it personally.

MR McCUSKER: Personally, yes. I think that is it. I went on to say section 12 makes it clear that there is a power of delegation of the functions of the Minister.

GUMMOW J: It might help with ownership of property.

HAYNE J: And the enforcement of mining tenements, or the conditions of mining tenements, granted by the Minister, I would have thought.

MR McCUSKER: Yes, that is so, because as the individual changes, still the Minister is there.

GUMMOW J: But those considerations have no significance for this debate - those considerations which underlie that provision, which one sees in the various legislation about corporation sole. Those considerations have no significance for this litigation.

MR McCUSKER: Perhaps not, your Honours. I merely mention it in this case out of interest. On the question that your Honour the Chief Justice raised with me of the effective adoption of the minute. Page 149, of course, as your Honours have already seen, does have a rubber stamp "APPROVED" by the Minister, but there is evidence which we cannot, of course, refute, that there were some discussions that took place over a period between the date of the minute, 30 June, and the stamping "APPROVED" on the minute. Your Honours will see on page 149 the initials of Victor Miasi are there as, we would say, one of the persons who was a participant in the production of the minute. I think Mr Burton referred to that as simply being his initials were there because he was in some way a contributor.

KIRBY J: Where is that, 149?

MR McCUSKER: It appears at 149. You will see, underneath the Director-General's signature, there are some initials: "RB", which is Burton; "WP", Phillips; "VM", Victor Miasi; and "DH" is Hicks.

GLEESON CJ: And "SS"?

MR McCUSKER: I think that is the typist, your Honour.

GLEESON CJ: Yes. Now, should we understand from what you said a little while ago that this matter of the interest of Mr Phillips' son only first intruded itself into this litigation after Justice Heenan's decision?

MR McCUSKER: The information was obtained on the day before, the night before, Justice Heenan's decision.

GLEESON CJ: So it came into the case at the appellate stage?

MR McCUSKER: At the appellate stage, yes.

GLEESON CJ: Right.

MR McCUSKER: Before I leave 149, could I just refer your Honours also to paragraph 20 of that minute:

Should you concur with my recommendations, suggested letters to the parties are attached for your consideration please.

The evidence was that the letters - one of them appears at page 37 - those letters which were sent were the letters drafted by the author of the minute.

So although we do not contend that there was mere rubber-stamping in the sense that your Honour Chief Justice Gleeson put it to me, nevertheless, we rely upon that to show that there was a degree of reliance by the Minister on the advice given and, coming to that, it is our submission that there is no evidence that the Minister knew of the pecuniary interest of Mr Miasi or, indeed, the pecuniary interest of the son, Mr Phillips. We approached the matter on the basis that he did not know. Indeed, that is the approach that Justice Sheller took and - - -

GLEESON CJ: Not only that, it is part of the basis of your application for relief because it is a relevant use and that was a relevant consideration he failed to take into account.

MR McCUSKER: Indeed. Yes, that is right. The fact that he did not know means, in our submission, that there was - one can put it various ways and one is careful not to use the word "taint" - but the procedure was itself affected by at least a reasonable apprehension of bias.

GLEESON CJ: Bias on the part of the Minister?

MR McCUSKER: No, bias in terms of the process itself in that part of the process was the production of a minute on which the Minister, at least in part, relied as the minute shows and the letters that he sent on the basis of the minute, and a reasonable or a fair-minded observer, in our submission, told that Mr Miasi was present at and had discussions with Mr Burton and Mr Phillips leading to the drafting of a minute, a first draft, recommending that Hot Holdings get the title without disclosure by Mr Miasi of his interest, with Mr Phillips' son also, we say, still significant, although not the major issue, Mr Phillips' son also having an interest undisclosed, to a fair-minded observer knowing or seeing that that recommendation, albeit adapted by various changes to the minutes, goes forward ultimately to the Minister who does not know of the interest of Mr Miasi or Mr Phillips' son and is entitled, therefore, to assume that the advice which is given is disinterested advice. A fair-minded observer, in our submission, would say there is a reasonable apprehension here that the process has been affected.

GLEESON CJ: That is what I think we need to be very clear about. Do you say that there is a reasonable apprehension of bias on the part of the Minister?

MR McCUSKER: No, your Honour, we do not, not in the sense of personal bias. I think Justice Gaudron was asking on several occasions, "Is it said that there was a bias in the sense of the Minister acting for the purpose of furthering the interests of Miasi or Phillips' son?" and the answer is "No."

GLEESON CJ: If you look at page 250 at the conclusion of Justice Sheller, at lines 45 to 50, he talks about:

a reasonable . . . suspicion . . . that the Minister . . . had himself for this reason not acted impartially.

MR McCUSKER: Your Honour, that really has to be read in the context of the facts that he has recited. His Honour was not suggesting that the Minister has not acted impartially in the sense of, if I can put it in positive terms, having taken a partisan approach, consciously. The problem - if I could draw an analogy by way of extreme example. If you have a ministerial adviser to whom a Minister refers, as Ministers usually do, for advice and the adviser does not disclose the fact that he has a pecuniary interest in the particular subject matter, gives advice to the Minister who simply acts on that advice and endorses it, then it could not be said that the Minister, in a personal sense, in a witting sense, was acting partially or was acting affected by bias.

KIRBY J: Indeed, Justice Sheller makes that absolutely plain at 93 where he says:

The Minister's decision is infected, even though he acted unwittingly -

MR McCUSKER: Yes.

KIRBY J: So he is drawing the distinction between the subjective and the objective.

MR McCUSKER: Quite so, your Honour.

KIRBY J: The last thing, I would have thought, we want to do is to immure Ministers in protection by their refusal or unwillingness to ask and they are surrounded by people whose duty and function it is to give them advice and as a matter of principle in administrative law one would think that in this day and age the last thing we would want to do is to protect the Minister by his simple statement, "I never knew, I didn't ask, I didn't know". They will be taken by reasonable observers in the Australian population, sitting in the back of Parliament or sitting in the back of public meetings, to be affected by what their advisers and their bureaucrats know, or they may be - they may in some circumstances.

MR McCUSKER: They may be. There is a reasonable apprehension that they possibly have been affected by it.

GAUDRON J: But what does "affected by it" mean?

MR McCUSKER: The decision has been the result - - -

GUMMOW J: The decision is not an animal with four legs that walks around. What do you mean?

MR McCUSKER: The decision of the Minister to grant Hot Holdings the licence, to a fair-minded observer - - -

GAUDRON J: May not have been a decision on - - -

MR McCUSKER: Based on an impartial view.

GAUDRON J: Based on the merits.

McHUGH J: Your written submissions, in your very first submissions, avoid the question. Submission 6, you say:

Procedural fairness requires that an administrative decision-maker decide the issues free from any bias or pre-judgment.

Full stop, but the true rule is "free from any bias or pre-judgment on his or her part", and it is no use saying that the decision may have been affected by bias. There are many decisions that are affected by all sorts of matters that one would not approve of. That does not invalidate the decision. The adviser may have been incompetent. He may have been reckless. He may have perjured himself. None of those matters, per se, invalidate the decision. You have either to say that when you look at what the adviser did, it was something that the Minister should not have taken into account or failed to take into account, or you have to go further and introduce a new head of law, namely, that if a Minister acts on material that has been presented by a biased adviser then his decision is bad, full stop, whether or not it would otherwise invalidate the decision.

MR McCUSKER: We would not go as far as that, your Honour.

McHUGH J: I think you have to.

MR McCUSKER: We would not shrink from suggesting that such a head of law exists but in a more modified form, that is, a decision may be bad if it causes - if the facts and circumstances of the particular case would reasonably cause a bystander - a fair-minded bystander to consider that the decision was affected by the bias, that it was not - - -

McHUGH J: That has nothing to do with the rationale of the whole bias. The rationale behind the bias rule is the need for neutrality, that you need a neutral decision-maker.

MR McCUSKER: Yes, that is so.

McHUGH J: So, it is either actual bias - an actual state of mind or a state of mind that an objective person would hold about the Minister's state of mind. Your case does not fall within either category.

MR McCUSKER: That, with respect, would be unfortunately too narrowly pigeonhole the range of possible circumstances in which a fair-minded bystander, observer, might conclude, reasonably, that there was an apprehension of possible bias.

KIRBY J: Especially if the fair-minded bystander had had the time - which perhaps some lawyers do not have - to watch "Yes, Minister" and "Yes, Prime Minister" and some experience in the way administration actually works.

MR McCUSKER: I think we all accept, your Honours, that there must be many occasions when a Minister simply must act on the advice of an adviser.

McHUGH J: If the Minister takes it over without an independent consideration then it may be right to impute whatever defects are in the advice to the Minister but that is not this case.

MR McCUSKER: But that, with respect, is a different point. If the Minister has acted - even if it is to some degree, and we do not know to what degree - if he appears to have acted in reliance upon the advice, as here, he has approved the recommendation, he has written the letters that have been sent with the recommendation, he would hardly have chosen - to use your Honour Chief Justice Gleeson's word - chosen to seek departmental advice unless he intended to use it. Now, certainly, there is evidence that he did. He made other inquiries and had discussions and so - - -

McHUGH J: Not necessarily to use it, to inform himself.

MR McCUSKER: To inform himself but he sought and got a recommendation and he approved it. But let us suppose - just going back to the earlier point that your Honour Justice McHugh made with me - that the Minister receives advice and without further inquiry acts on that advice not knowing that the adviser has a pecuniary interest. The question is, would that of itself give rise to a basis for certiorari to quash the decision? If the answer is, yes, then it then becomes a question of degree and in this case - - -

McHUGH J: No, I do not think it becomes a matter of degree at all. It is difference in kind. In one case he has not exercised any discretion himself, he has just adopted his adviser's views.

MR McCUSKER: In the case I gave by way of example?

McHUGH J: Yes.

MR McCUSKER: Yes, but the point I am putting, your Honour, is this: if the adviser gives advice which is the result - the adviser has a pecuniary interest and gives advice without disclosure of that interest, the Minister does not know about it and he gives it weight - we do not know what weight in the scale of things. Certainly he makes other inquiries, but the fact that he has given it weight, to a fair-mind bystander, observer, would give rise to a reasonable apprehension that possibly - not certainly or even probably, but possibly the decision is not the result of a disinterested process, if I could put it that way.

McHUGH J: Now, you introduce something completely - - -

GLEESON CJ: You.....of telling us the decision is not kosher. I think we would have to face up to exactly what it is that brings this decision undone.

MR McCUSKER: Yes. Well, I can say what it is not and that is the Minister's personal bias.

GAUDRON J: Or his personal interest.

MR McCUSKER: Or personal interest, nor, indeed, is it a decision based on the Minister's desire to further the interests of Miasi and/or Phillips' son.

GAUDRON J: Do you say it is a reasonable suspicion though that it was to advance the interests of Miasi and Mr Phillips' son?

MR McCUSKER: There is a reasonable suspicion that the minute, which in its initial state, in fact its genesis, was drafted by Mr Miasi who was party to discussions, not about the merits, but party to discussions which led to the formation of the minute and who had a direct pecuniary interest in the outcome. But that fact gives rise to a reasonable apprehension - - -

GAUDRON J: Of what?

MR McCUSKER: - - - of bias in respect of the recommendation.

McHUGH J: But that is not the issue, never has been in this stated law. All you can say is that the reasonable bystander may have a reasonable apprehension that the decision is wrong.

MR McCUSKER: No, your Honour.

McHUGH J: That is all you can say.

MR McCUSKER: We do not have to go that far. We say it is a reasonable apprehension on the part of the bystander that the end result is the result - the decision has been brought about as a result of a defect, if I can put it this way, in the process, the procedure, because what was supposed to be a disinterested procedure, quite unlike the receiving of - - -

McHUGH J: No. There is no such thing as a disinterested process. Now, we really have to stop the loose thinking and have some precise thinking. There are disinterested decision-makers.

MR McCUSKER: And disinterested advisers.

McHUGH J: No. No one suggests that. I mean, a judge may act on evidence which is the product of perjury, of the worst form of bias. That does not mean the decision is invalid because of bias or imputed bias on the part of the judge.

MR McCUSKER: No, but he is not acting on advice, your Honour. He is acting on the basis of perjured evidence.

McHUGH J: Well, he is acting on evidence.

MR McCUSKER: Which is a different matter entirely.

GAUDRON J: Well, is it?

HAYNE J: Well, is it? A judge commonly acts on the submissions of parties, parties who have the most acute financial interest in the outcome of the litigation. There we are.

MR McCUSKER: Certainly, and disclosed.

HAYNE J: Yes.

MR McCUSKER: So that the judge is in a position where he knows, unlike the Minister here, of the interests of the parties and so the whole process is quite different. But, what is a legitimate expectation on the part of the parties concerned, that is Creasy here and Hot Holdings, is that the Minister, whilst seeking submissions which he knows are from interested parties and treats them accordingly, if he acts on advice from the department, will be acting on advice given by persons disinterested. That is what the public expects. That is what the parties expect.

GLEESON CJ: And the Minister expects.

MR McCUSKER: And the Minister expects.

GLEESON CJ: You seem to be arguing, really, that the Minister was misled, and there may well be circumstances in which if an adviser of the Minister acted fraudulently, then you could say the Minister took into account something he should not have taken into account, or failed to take into account.

MR McCUSKER: Yes.

GLEESON CJ: But you do not impute the fraud to the Minister, do you?

MR McCUSKER: No. That again, your Honour, with respect, is a different case entirely. Certainly it can be said here that by implication the Minister was misled because the Minister did not know of the interest of the two parties, one direct one indirect, and one must presume that the Minister believed he was getting disinterested advice not only because of the policy statement, which my learned friend, Mr Buss, has pointed out, came into effect I think a matter of weeks after the minute was drafted.

GLEESON CJ: What is the indirect interest to which you referred a moment ago?

MR McCUSKER: I am talking here, when I say indirect, of Mr Phillips' son.

GLEESON CJ: Mr Phillips' son was not a party to this process at all.

MR McCUSKER: No.

GLEESON CJ: It might have been that Mr Phillips could have had an indirect interest but nobody suggested he did.

MR McCUSKER: Only to the extent of the familial tie.

GLEESON CJ: I do not understand that. I can understand how Mr Phillips' son had an indirect interest through his shareholding in AuDAX.

MR McCUSKER: Yes.

GLEESON CJ: That is the same indirect interest that I think Mr Miasi had.

MR McCUSKER: That is right, and which it is common ground - I refer here to the appellant's submissions - was likely to have, that is the grant of the licence to Hot Holdings

was likely to have a material positive effect upon the value of shares in AuDAX.

That appears in the appellant's outline, paragraph 25, and indeed there is no issue as to that.

KIRBY J: Just to add to your difficulties, my problem is not one with the general principle that you are putting up, with which I have a lot of sympathy, but my problem is this is not a very good case in which to advance the general proposition you are advancing on the facts. Let us face it. What is there? There is Mr Phillips who has a son with some shares, and there is Mr Miasi who is low in the pecking order and who has written document, when one actually analyses it, is pretty neutral and does not - he adds the point about there is no reason why he should not go ahead with this, but that is what was the result of the officer's discussion.

MR McCUSKER: Miasi held 40,000 shares which cannot, in the scale of things, be thought to be insignificant.

GLEESON CJ: No, but you would have - all these problems that we have been talking about might have arisen on the facts of this case if Mr Phillips had owned a significant number of shares in AuDAX.

MR McCUSKER: I accept what your Honour says, but I go back to where I started from, and that is it is clear from Mr Phillips' affidavit that Miasi did participate in discussions before the decision was made by Phillips and Burton to, in effect, recommend that the Warden's recommendation be adopted.

GAUDRON J: Presumably the Minister can talk to whoever he likes.

MR McCUSKER: Of course.

GAUDRON J: He might have been down at that funny club that they have in Perth.

GLEESON CJ: It must be a surf lifesaving club.

GAUDRON J: Yes, you know that funny club. Do you remember that funny club?

GLEESON CJ: Cottesloe Beach.

MR McCUSKER: Your Honour is not thinking of the Karrakatta Club, are you?

GAUDRON J: No, the other funny one, and somebody might have come in and said, "It must be about time for you to make your decision on this. I hope it's in favour of Hot Holdings because I've just bought shares in AuDAX." Now what would happen then?

MR McCUSKER: Nothing, your Honour. The reason is - - -

GAUDRON J: What is the difference?

MR McCUSKER: We say it was a huge gulf between that situation which must occur many times - - -

GAUDRON J: Now, assume it is his golfing partner.

MR McCUSKER: Even the golfing partner because the Minister is to be assumed to act impartially and if he knows that someone is putting forward a proposition, he knows the interest of that person. He is not seeking advice. The big difference between those kinds of situations which must be very, very common and the Minister in this case seeking advice and getting it from the department and believing that he is getting disinterested advice. Miasi did not write to him and say - - -

GAUDRON J: I would have thought there would have been greater suspicion attaching to the conversation with his golfing partner. I mean, if it is a complete stranger, a member of the public might say, "Well, he wouldn't have taken any notice of that", but golfing partner?

MR McCUSKER: Well, there might be suspicion - - -

KIRBY J: That person is not preparing a minute or is not putting up the formal documentation, is not an officer of the Crown, is not sworn and expected to act independently and without partiality. These are very significant differences.

MR McCUSKER: That, with respect, is our point, that there is a vast difference between a Minister who might be besieged by various constituents, some promising money, and all urging for Hot Holdings to get this. There is a vast difference between that and the Minister who is presumed, rightly or wrongly, to bring to bear an independent mind nevertheless.

GAUDRON J: Can I interrupt you again, Mr McCusker. If we are in the realm of bias, we are in the realm of bias by association, are we not? You have to accept that the Minister - and you do accept, as I understand it - considered the proposals. So we are in the realm, are we not, if there is bias, bias by association?

MR McCUSKER: I hesitate to accept, with respect, the tag. I would rather put it in this way, that where the Minister seeks advice which he expects to be disinterested and in conformity with the requirements attaching to all persons employed in the civil service and he gets advice which he believes to be that and acts on it, even if he does not act solely on that advice, then we say that advice, if it is not disinterested or is perceived not to be disinterested, gives rise to a reasonable apprehension, not of bias on the part of the Minister as such, but apprehension that the end result is the result of a flawed process.

McHUGH J: But you could make the same argument if the advice was negligently prepared. That would not invalidate it.

MR McCUSKER: No, it would not, your Honour, but that is a different issue entirely.

McHUGH J: No, it is not a different issue. Once you accept that you cannot impute to the Minister actual or apprehended bias, you are in a different category.

MR McCUSKER: If the Minister acts on advice which is negligently prepared or contains an error of law, or both, that may give rise to some other challenge, but it is not a challenge based on failure of procedural fairness or apprehension of bias. The negligence would not give rise in the mind of a fair-minded bystander to an apprehension that the decision may possibly have been affected by bias. The bystander may say, "Well, the Minister has relied upon negligent advice", but where do you go from there? You may go anywhere, depending upon the degree of negligence and the nature of the advice given, but that could not impugn the decision.

McHUGH J: Why should you distinguish as a matter of principle between the material a Minister acts on which is biased, prepared as a result of bias, although it may be perfectly accurate, and acting on material that is incompetently and negligently prepared and contains error?

MR McCUSKER: Your Honour, because we say it is an important matter of principle that when decisions of this nature are being made, that justice must not only be done, but be seen to be done, in the sense that it is important for the public confidence in the public administration that the decisions which are made in that area are seen to be made free of bias or personal interest. That is the important principle at stake here. So if the decision is wrong, or based on erroneous advice, that is another issue entirely. We all make mistakes. But the important principle at stake is that there should be seen to be a clear requirement that advisers to Ministers give disinterested advice - - -

GAUDRON J: Where do we get that from? Where do we get that? As I understand it, personal advisers were never expected to give disinterested advice. They were expected to do the opposite - to give political advice. Maybe the public service was once expected to, but where does that come from? A vibe in the Constitution, or something more precise?

McHUGH J: And what is more, the tide is running out on you. A doctrine of ministerial responsibility in this country seems to be almost dead. Ministers have no incentive to know things that are going on in their department because they no longer stand or fall by the department's decision, and departmental officers, knowing this, have no incentive to send material up the chain, if it might be material that the Minister does not want to hear. That seems to be the reality of modern politics.

MR McCUSKER: Well, very recent modern politics, perhaps, your Honour, but perhaps this Court can turn the tide back to where it should be flowing.

KIRBY J: But what is the inference of that - of Justice McHugh's very important statement there? What is the implication of that for this case? It would seem not to be to retreat from the legal obligations on Ministers.

MR McCUSKER: I agree, with respect.

GAUDRON J: We need to find out what those legal obligations are.

KIRBY J: And declare them.

GLEESON CJ: Mr McCusker, if a decision of a judge is obtained by fraud, the circumstances in which that decision may be set aside on that ground are fairly precisely and narrowly defined. It might be one thing if the fraud is the fraud of a party who has set out to - - -

MR McCUSKER: To deceive - yes.

GLEESON CJ: - - - procure the result; it might be a quite different thing if it is the fraud of a witness - as Justice McHugh said - who goes into the witness box and perjures himself. You cannot get a judicial decision set aside just because you can show that there has been some kind of fraud in the process, operating on the mind of the judicial decision-maker. Now, when you come to the present case, and you disclaim any suggestion that there was a reasonable apprehension that the Minister himself may have been biased, and you say, what happened here was that somebody let the Minister down.

At the very least, I would have thought, that requires you to look very closely at what the interested person did or failed to do, and what contribution that person made to the Minister's decision. But even suppose that in this case Mr Phillips was interested, through the ownership of shares in AuDAX. You still have to establish the general proposition that was put to you by Justice McHugh, do you not? You have to say that if an influential part in the formation of the Minister's decision was played by advice that was not disinterested, that vitiates the Minister's decision.

MR McCUSKER: That is so. We say that there is no difference in reality from a situation where the Minister acts or makes a decision in respect of a matter in which he has a pecuniary interest.

HAYNE J: Now, this notion of disinterested advice may also repay a claimant's examination. How do you take account of the fact that the adviser, the public servant concerned may give advice, trimmed according to the effect of that advice on that individual's career prospects in the service, not a set of circumstances unknown, I think.

MR McCUSKER: So we read sometimes, your Honour. Yes. I can only answer that by saying that is not this case and all the circumstances would have to be considered on each occasion that there is an alleged apprehension of bias situation of a failure of procedural fairness.

HAYNE J: But the example demonstrates, does it not, that you have taken a rule concerned with the ensuring that a decision-maker approaches a decision in a particular way and converted it into a rule directed to others and unless you convert the rule directed to the way a decision-maker operates into a rule directed by others how does your case get off the ground?

MR McCUSKER: We accept that it is a rule directed to others in the sense that if the others are advisers on whose advice the decision-maker acts and the advisers know that, as they clearly did here, then that is, in our submission, no different from a situation where the decision-maker himself has the interest. Now, to take your Honour Justice Hayne's suggestion that advisers may trim their advice in order to further their career prospects, that, we say, is a difficult proposition, it is for another day. It does not mean that because that could raise a difficult point therefore the principle should not be applied to this case.

HAYNE J: But you have to accept that if the test is suspicion of bias, then that suspicion is very readily raised in the case of the trimming example I give.

GAUDRON J: What I think needs to be addressed, is how you relate all this to the presumption of regularity. I would have thought the presumption of regularity in fact was something that was developed in the context of the limited opportunities for review of an administrative decision under the old law which it seems is the area we are into by reason that it is an application for certiorari. But, if we take your submission, the presumption of regularity must go out the window every time you could point to some - I will use deficiency, but it is perhaps not the right word, but deficiency in the decision-making process, not in the decision-maker's reasoning and not in the decision-maker but in the process.

MR McCUSKER: Yes, your Honour. I accept what your Honour says that there is a presumption of regularity, but that presumption can be displaced, and we say it is here, by proof that one of the parties - and I will put to one side the question of degree of involvement, but one of the parties, Miasi, involved in the process failed to disclose the interest.

GAUDRON J: But what I suppose I am asking is this. We are talking about whether a hypothetical person who is fully acquainted with the facts might reasonably entertain a suspicion - again I do not know what the suspicion is. It is not a suspicion that the Minister acted in his own interests. It is not a suspicion that he acted in the interests of anybody else. It is not a suspicion that he did not properly consider the material before him. It really is a suspicion, I think, at the end of the day, that he was under the influence of somebody with whom he was associated. I am just wondering how you do relate that suspicion to the presumption of regularity. I mean I, for my part, have not actually had experience of Ministers who were easily influenced by their departmental advisers.

HAYNE J: As distinct from their ministerial advisers.

GAUDRON J: As distinct from their ministerial advisers, that is right.

HAYNE J: And a grasp on what are referred to as the political realities of the situation.

MR McCUSKER: However, your Honours, that may well be so but experiences vary, with respect, and the - - -

GAUDRON J: But exactly. That is something, though, that bears on, I think, both the presumption of regularity and what a reasonable person might think. Do you assent to the proposition that the vice here is that the hypothetical person, fair-minded person, might reasonably entertain a suspicion that the Minister's decision was influenced by a man who had a financial stake in the outcome?

MR McCUSKER: Yes, and that the Minister did not know that.

McHUGH J: There are many forms of bias. You were able, in this case, to rely on pecuniary interest in respect of an adviser, but think of the other forms of bias: preconceptions, personal involvement, personal friendship, personal enmity, social or political commitments, improper contacts, even business or institutional associations. Now, all of those in a particular case may constitute bias on the part of a decision-maker. But supposing an adviser is friendly with the company that the recommendation is for. Does that mean that because the adviser may have been biased in that sense that the Minister's decision goes?

MR McCUSKER: Your Honour, it is always going to be a question of examining the circumstances. My answer to that broad proposition is, no, it does not mean that, but a direct pecuniary interest is quite different. A friendship or an association with the company concerned would depend, in turn, on the degree of association. It is really a question of degree. To attempt to deal with this case on the basis of some hard cases that might be conjured up, with respect, is to ignore the point that here there was an undisclosed direct pecuniary interest which meant that if Hot Holdings succeeded, Mr Miasi's fortunes would rise, and he did not disclose it.

GLEESON CJ: To the Minister?

MR McCUSKER: Did not disclose it to the Minister.

GLEESON CJ: Well, he would not have been under an obligation to disclose it to anybody else, would he?

MR McCUSKER: Or anyone else.

GAUDRON J: We do have to hypothesis, do we not? We can reasonably assume that a fair-minded observer might reasonably suspect that Mr Miasi gave the advice he did because of his own personal interest?

MR McCUSKER: Right.

GAUDRON J: Right. Then we have to assume at least this much, do we not, that the Minister was influenced by that advice?

MR McCUSKER: Yes, whether or not entirely but, nevertheless, influenced to some degree. He was, after all, seeking advice from the department. I take your Honour's earlier point that, perhaps, Ministers are more easily persuaded by the ministerial advisers than by the department but the facts of this case give rise to a fair apprehension - - -

GAUDRON J: Not that he was influenced by the minute, as such.

MR McCUSKER: But by the advice?

GAUDRON J: But by Mr Miasi's advice.

MR McCUSKER: Yes, Mr Miasi was a participant in discussions which led to the production of advice which, in its essential point, never changed, and that was "Hot Holdings should get it". We say that in those circumstances a fair-minded observer would be appalled. There is a real suspicion.

GLEESON CJ: Of - - -?

MR McCUSKER: Of the Minister having acted on advice which he thought was disinterested and did not know that it stemmed from Mr Miasi's participation to the discussion. To what extent, we do not know.

GLEESON CJ: That does not just give the Minister grounds to sack Mr Miasi, that vitiates the Minister's decision.

MR McCUSKER: Yes.

GLEESON CJ: On page 251, at line 30, the suspicion is described as the suspicion that "the Minister's decision was not an impartial one." Partiality, or lack of partiality, are qualities that one commonly sees attributed to people.

MR McCUSKER: Yes.

GLEESON CJ: Here the quality is attributed not to a person but to a decision.

MR McCUSKER: Or the process. Yes, the decision. It is the process that led to the Minister's decision which is really under review.

GLEESON CJ: It is the personification of the decision that is the key to the reasoning in this judgment, is it not?

MR McCUSKER: With respect, yes. Nowhere in the judgment does Justice Sheller suggest that the Minister, as such, was affected by bias.

McHUGH J: That is why I said to you earlier that you have got to break new ground of law, you have got to find a new head of judicial review.

MR McCUSKER: That may be so, your Honour, and we do not shrink from that because we say that if this Court were to declare that where a Minister makes a decision in reliance - even if it is only in partial reliance - upon advice which he expects to be disinterested but which stems from a person - - -

GAUDRON J: Which it is suspected stems from.

MR McCUSKER: Suspected stems from, yes, reasonably suspected, from a person having a pecuniary interest, then that is sufficient or may be sufficient, given the circumstances, to vitiate the decision. I do not know, your Honour, that it is entirely new ground because in Gough's Case, and I appreciate that some of the observations in Gough - - -

McHUGH J: I thought we had buried Gough in Webb's Case but its ghost comes back to haunt this area of the law.

MR McCUSKER: Your Honours have certainly buried parts of Gough's Case but the part I wanted to take your Honours to - - -

HAYNE J: There is still an elbow sticking out of the grave.

GLEESON CJ: I thought it was buried recently by the House of Lords too.

KIRBY J: Perhaps it is part of the skeleton of the common law. The skeletal principle perhaps, hanging out.

MR McCUSKER: There is a discussion by the House of Lords in Gough's Case at page 658.

GUMMOW J: Is the Chief Justice not right? Is there not a very recent decision of the House of Lords which says something about Gough?

MR McCUSKER: Yes, it does not entirely bury it though, your Honour. The parts I am referring to, 659 of Gough's Case - and I will not read the passages tediously. At 663 references were made there to the Sussex Justices Case. I appreciate that some parts of the decision in Sussex Justices Case may have been at least cast doubt on by the more recent House of Lords decision, but the point that was being addressed there was a case where a clerk of two justices went into the room where the justices were making their decision, and although there was evidence that he did not participate in the decision-making process, the fact that the clerk, who was also a solicitor, had an interest in the outcome of the case because his client was opposed to the defendant in a civil action was considered to be enough to give rise to a reasonable apprehension of bias.

GLEESON CJ: Now, just to understand the background to that. These were lay justices presumably.

MR McCUSKER: They were, yes.

GLEESON CJ: Was the clerk in there as their legal adviser if they wanted advice?

MR McCUSKER: He was, yes.

GLEESON CJ: So the clerk went into the room to give advice to the justices.

MR McCUSKER: Yes, as a clerk, but did not, on the evidence of the justices, actually give them advice. Nevertheless, it was - - -

McHUGH J: But he was invited in to give them - - -

MR McCUSKER: But was invited in to give advice, just as here the department was invited by the Minister to tender advice to him. The House of Lords did not appear to take the view that because it was not the decision-maker himself, but the appearance that the decision-makers, that is the justices, may have been affected by biased advice. It goes that far back. That was enough for them to take the view that there was a reasonable apprehension on the part of a fair-minded observer that the decision was affected by bias. It was not a bias of the justices. It was the apprehended bias of the adviser who, in fact, did not advise.

So perhaps it is breaking new ground, in answer to your Honour Justice McHugh, but we say the approach that was taken there has much to commend it because the point of principle involved really goes to the question of the appearance of justice being observed there - - -

KIRBY J: And that is how Justice Sheller explained it in this case.

MR McCUSKER: Yes. That is quite so, your Honour, exactly. Therefore, it does not matter that Mr Burton and Mr Phillips said, "Our decision was not influenced by Mr Miasi", although it must be - - -

McHUGH J: It is not a question of whether they were influenced. It is a question of whether the Minister was influenced. What Lord Hewart said in the Sussex Justices Case was that it did not depend upon what actually was done, but what might appear to be done, in that the clerk was in there advising the justices even though his firm was involved in the litigation.

MR McCUSKER: Yes. That is so. The only point I make of that, your Honour, is that the fact that it is not the decision-maker but the adviser who may be affected by a pecuniary interest, in our submission, should make no difference. If the adviser is there to give advice as here, the department was there to give advice, then if the advice can be said by a fair-minded observer to carry with it a reasonable suspicion of bias, then that is enough in a given case to vitiate the decision.

The Minister is entitled, as I said earlier, to expect that his advisers would give disinterested advice. The policy statement, incidentally, my learned friend, Mr Buss, did point out the effect date was 28 July which is after 30 June but before the Minister actually endorsed the advice, so there was the opportunity for both Mr Phillips and, more particularly, Mr Miasi to have raised the point when they saw the policy statement. It is not in evidence, but there is a gazetted code of ethics for the entire Western Australian public sector and, as his Honour Justice Kirby said, nothing which appears in the policy statement is unusual or exceptionable. It simply reiterates what one would expect in the public sector. I could hand up, if there is no objection, the code of ethics which was current at the time, the broad public sector code of ethics which is, in effect, adopted but expanded by the department's policy statement.

GLEESON CJ: Was this before the courts below?

MR McCUSKER: It was not, your Honours, no. It is a gazetted public sector statement. In any event, I think it is common ground and certainly on the part of the second respondent the Minister was entitled to expect that the advice that he got would be from someone who had no pecuniary interest, or if he did have it, would declare it.

It is, we would submit, quite significant that Mr Phillips' evidence came in after the trial judge had given his decision and Mr Phillips evidence clearly leaves, putting it at its lowest, a strong inference that Mr Miasi participated in the discussions, plural, that took place. We are not given the detail of the discussions. Mr Miasi, again significantly, has not gone on affidavit and an inference can be drawn from that the evidence of Mr Miasi would not help the respondent in that regard.

So Miasi, if I could just briefly recapitulate, was a senior officer with the department, not a question of a cleric or clerk, who was present at discussions re the decision which appears at 135, paragraph 7. His initials are on the final minute and he drafted the first minute and, in particular, the significant part recommending, in effect, that Hot Holdings should get the licence.

Burton and Phillips said that he did not influence their decision to support the Warden's recommendation but, in our submission, Justice Sheller rightly treated that as irrelevant, as he did at page 249, paragraph 88. The appellant has rightly conceded that Mr Phillips' statements and Mr Burton's state of mind should be given no weight. That appears in the appellant's outline, paragraph 13 and paragraph 23(a) and the same concession applies both to Burton and Phillips. But we are not told what part Miasi did play in the discussions. Why was he there at all, unless it was to in some way assist? Bias can be an insidious thing, in our submission. This man was a senior officer, although junior to the other two. That does not mean that he was someone who was to be disregarded and even if by his silence in some respects - his silence may of itself have supported or seen to be supporting the view that was being taken that Hot Holdings should get it.

In Ebner's Case in paragraph [7] of the joint decision of your Honour the Chief Justice and Justices McHugh, Gummow and Hayne, at paragraph [8] at page 279, it is said that:

The apprehension of bias principle admits of the possibility of human frailty . . . it requires the identification of what it is said might lead a judge (or juror) to decide a case other than other on its legal and factual merits.

It is a different context, I appreciate. There is a question:

of the logical connection . . . The bare assertion that a judge (or juror) has an "interest" in litigation . . . 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.

No attempt, in our submission, should be made to inquire into the actual thought processes here of the decision-maker, ultimately, the Minister himself. The essential problems that this case gave rise to, we say, are all directed towards the proper conduct of administrative procedure and the process here, or the procedure, was affected by the fact that Mr Miasi had an interest, a direct pecuniary interest in the outcome and failed to disclose it. So, non-disclosure, of itself, would cause the Minister to think that he was getting advice which was disinterested, but more importantly, that non-disclosure - and as Justice Sheller said, coupled with the non-disclosure of Mr Phillips of his son's interest - would add to - we do not say create, but add to the reasonableness of a suspicion on the part of a fair-minded observer.

GLEESON CJ: Why? If the interest of Mr Phillip's son was not such as to disqualify Mr Phillips, why should Mr Phillips have disclosed it? What would be the point of the disclosure?

MR McCUSKER: Although it may not have disqualified Mr Phillips, the question is why he did not disclose it?

GLEESON CJ: Why should he? It is none of the Minister's business.

MR McCUSKER: Well, the policy statement - and I appreciate, again, that the effective date is after the date of the minute but nevertheless it was in existence at the time when the Minister was still considering the matter - states - and this appears at page 86 on the left-hand side. "Policy Statement" is the heading and it starts:

The external interests of employees . . . including family members and friends, must not influence or appear to influence the ability of employees to carry out their functions as representatives of the department.

GLEESON CJ: So should Mr Phillips have disclosed it if he had a friend who had shares in AuDAX?

MR McCUSKER: On the basis of this, yes, your Honour.

KIRBY J: It would be a matter of degree.

MR McCUSKER: It is a matter of degree always.

KIRBY J: It is a question of what is going to impress an ordinary Australian or a reasonable person.

MR McCUSKER: That is so, with respect.

GLEESON CJ: All right. Well, take the concrete case we have before us: an adult, independent son.

MR McCUSKER: Yes, 27 years old, not working because he has had an accident, he is living on compensation, has invested the funds and has spoken to his father about the investments that he has made.

GLEESON CJ: And the question is, should Mr Phillips have disclosed to the Minister his son's financial business? Should he have said to the Minister, "If I had these shares myself, the holding would not disqualify me" - I am sorry, "The fact of my son's holding does not disqualify me from giving you advice, and I intend to give you advice, but I intend to disclose to you that my son holds shares in AuDAX"?

MR McCUSKER: Yes.

GLEESON CJ: Why?

MR McCUSKER: Because the Minister would then appreciate the possibility that the advice may have been unconsciously affected by the son's shareholding.

GLEESON CJ: But if that possibility existed, it was a disqualifying circumstance.

MR McCUSKER: I accept, your Honour is right there and I come back to what his Honour Justice Sheller - - -

KIRBY J: It is only disqualifying if it reaches the point that to the ordinary, reasonable observer, it is disqualifying.

MR McCUSKER: It is a cumulative effect, as, I think, Justice - - -

GLEESON CJ: But is there not an inconsistency between Justice Sheller saying that the fact that his son held those shares did not or would not have disqualified Mr Phillips, and saying, "But Mr Phillips should have disclosed it to the Minister"?

MR McCUSKER: There is, your Honour. Of course, there is. I accept that, but it is a question of degree and, I say, the policy statement - and these were senior officers in the department. They could hardly have been living in ignorance of the forthcoming policy statement, which was simply shown as effective date, July. They could hardly have been in ignorance of the basic principles and requirements that there be a disclosure because of the importance of ensuring that they were seen to be acting - not only acting, but seen to be acting - without any influence - - -

GLEESON CJ: Justice Sheller was a party to a decision of the New South Wales Court of Appeal that said a judge did not have to disclose his wife's shareholding in a litigant before him.

MR McCUSKER: Yes, I remember him mentioning that in the course of the proceedings. It is a question of degree, that is all I can say, your Honour, and I accept that there is a degree of inconsistency between that view and the policy statement.

GAUDRON J: Do you also accept that if the facts, as it were, were located in a judicial context, they would not give rise to a reasonable apprehension of bias? Let us assume, for example, that an associate has shares in a company that is a litigant and that the tipstaff's mother has invested in it. Would that give rise to a reasonable apprehension of bias?

MR McCUSKER: No, your Honour.

GAUDRON J: Why is it any - - -

MR McCUSKER: They are not advisers. Justice Gleeson, I think in the course of - I read the transcript of the application for special leave - and hypothesised a researcher to a justice and raised the same kind of question in that context. In our submission, it is unlikely that a fair-minded observer would conclude that there was a real apprehension of bias there, unless the facts were that the justice - and I know of no such case - simply would, as it were, rubber-stamp the researcher's opinion.

GAUDRON J: Now, have we any reason to suppose that the Minister ever even spoke with this man who had the 40,000 shares?

MR McCUSKER: There is every reason not to suppose that the Minister spoke to - I think there is evidence that Miasi took no part in any discussions with the Minister.

GAUDRON J: So he did not advise the Minister.

MR McCUSKER: No, he did not and we never suggested that he did, but he was a party to the discussions which led to the minute which he drafted and which contained in it the essential recommendation which was never changed. That is the difference between the tipstaff, or the associate, to a justice, where, for a start, a fair-minded person, knowing the way that the judicial system works, would not be likely to conclude, or could not fairly conclude, that even if the associate was doing some research that that of itself would be such as to, as it were, influence the judge's final decision.

GAUDRON J: But a Minister is different because it is assumed he is under the influence of his departmental officers.

MR McCUSKER: No, not assumed, but it is a fair inference from the facts of this case that he would have relied, if not entirely, then certainly to a substantial degree, on the advice which he sought. He was not going to seek advice and then throw it away. He chose to seek the advice, as his Honour Justice Gleeson said - - -

GAUDRON J: I do not know that - did he, or is the evidence that in accordance with the normal practice of recommendations?

MR McCUSKER: There is no provision in the Act that requires, or even permits, the Minister to seek advice, but we are not saying that the - - -

GAUDRON J: No, but there are ordinarily practice and procedures within departments that say these things come in and they are looked at by the head of the section and then by the departmental head and a recommendation is forwarded to the Minister for his consideration. That is usual practice, is it not?

MR McCUSKER: There is evidence, I think Mr Pullinger's - there are a number of affidavits, I will not take you directly to them - but the effect of the evidence is that when submissions were sent to the Minister they were sent on by the Minister's office to the department and when Mr Pullinger, who is solicitor for Creasy, rang Mr Stevens in the Minister's office he was referred to Mr Miasi in the department in relation to the timing of submissions, and so on. So, clearly, there was a choice made by the Minister to seek the advice of the department and there is nothing at all wrong with that. It is perfectly commonsense. The Minister is a busy man, but if he does seek the advice there is a fair inference that he is then going to rely upon it to some extent. The stamp of approval fortifies that and so does adoption of the draft letter sent with the advice.

KIRBY J: You referred to the code. Is that the earlier code? Is that in the papers?

MR McCUSKER: No, it is not, your Honour. I mentioned that it was gazetted but it is not in the papers and unless there is consent I would not seek to tender it.

KIRBY J: But, is there the later code in the papers?

MR McCUSKER: The code, yes, your Honour, the code is in the papers. That is, the code, the effective date of which - at page 79 of the papers, your Honour, and the relevant page is page 86 - 86 is the most important, at the top of the page, left-hand column.

KIRBY J: You say this is a gazetted document, is it?

MR McCUSKER: No, your Honour, that is not. The gazetted document that I mentioned was a broader code of ethics applying to the Western Australian public sector, gazetted because it was a code instituted under the Public Sector Act. It is not before the Court.

KIRBY J: Was that in force at the relevant time, or not?

MR McCUSKER: Yes.

KIRBY J: So the gazetted code, which is part of the public law of Western Australia - - -

MR McCUSKER: It is, yes.

KIRBY J: - - - was in force at the relevant time.

MR McCUSKER: Yes, your Honour.

KIRBY J: And does that contain matter that you say is relevant to this case?

MR McCUSKER: Yes, it does:

openly declare -

but it is not to the same specific degree as the policy statement in the book.

KIRBY J: Is the irrelevant code.

MR McCUSKER: It says:

openly declare matters of private interest that may conflict with the performance of our public duty -

so it is not anywhere near as specific as the provision in this policy statement which enjoins employees that they:

must not influence or appear to influence -

be influenced by:

The external interests of -

themselves -

family members and friends - - -

KIRBY J: What is the date of that gazetted code?

MR McCUSKER: The gazettal, your Honour, is Friday, 7 June 1996, No 73.

GUMMOW J: Is it made under some statutory power?

MR McCUSKER: It is, your Honour, yes. The Public Sector Management Act.

GUMMOW J: The particular section?

MR McCUSKER: Section 21(5). I am told your Honours have been provided with a copy. I was not aware of that.

KIRBY J: Well, if it is part of the public law, I would like to have it.

MR McCUSKER: It is public law in any event.

CALLINAN J: Can we get it?

GAUDRON J: I think we have it.

MR McCUSKER: It was provided to the Court yesterday, I am told.

GAUDRON J: Yes. It is attached to the first-named respondent's note of appeal book references.

MR McCUSKER: Yes, it is, your Honour and I hope that that note of appeal book references will be simply an aide-mémoire for your Honours and I do not think - - -

KIRBY J: In a sense, the point about the son of Mr Phillips seems to be the weakest factual element in your case. In a sense, your case rests or falls on Mr Miasi and his very large share, his failure to declare it, the fact that that is contrary to proper Crown practice, the fact that he prepared the first draft of the minute, the fact that that contained - - -

McHUGH J: That is wrong, is it not? He did not prepare the first draft, did he?

KIRBY J: The handwritten draft.

MR McCUSKER: The handwritten draft, yes.

McHUGH J: Hicks prepared the - - -

MR McCUSKER: Your Honour, Hicks prepared in the sense that Hicks got it typed and added some references which Mr Miasi had left blank. That is the effect of Hicks - so, Hicks was acting in a purely clerical capacity, he just passed it on. There is no question about it, Hicks himself accepts in his affidavit that Miasi prepared the handwritten draft.

GLEESON CJ: So you would not suggest that if Hicks owned shares in AuDAX that would have mattered?

MR McCUSKER: No. He did not participate in any discussions which led to the decision. Miasi did.

GLEESON CJ: Right. So, it is clear enough that there is no suggestion that if Hicks had have been a shareholder in AuDAX that would have vitiated the decision?

MR McCUSKER: There is not, no.

KIRBY J: I was interrupted. The fact that he included in his minute words of encouragement to proceeding with the Hot Holdings decision, the fact that subsequent copies of the minute which are in our appeal papers in the record reveal no alterations on its path up to the Minister relevant to that recommendation, the fact that it went to the Minister and the Minister made the decision favourable to Hot Holdings and what the ordinary, reasonable observer would think of that.

The reasonable observer would undoubtedly think Mr Miasi did not act honourably. The question is whether his lack of conformability with ordinary proper Crown practice as a public servant in this country in some way contaminated the lawfulness of the Minister's decision. You have to get it to the point that his error undermines the validity of the Minister's decision.

MR McCUSKER: Yes - not causing a reasonable apprehension of bias on the part of the Minister, as such, but that is the process, yes. It is the administrative process which we say here is under review, not the Minister's bias, or apprehension of bias on the part of the Minister, but apprehension of bias in the course of the decision-making process.

KIRBY J: There has been a lot of discussion in recent times about the accountability of ministerial staffers and others. I realise that this officer was not a staffer, but the issue is an important issue for public administration. Has taking that step been considered in literature in public administration as far as you are aware or in administrative law journals?

MR McCUSKER: In terms of ministerial advisers?

KIRBY J: No, ministerial advisers or departmental officers, because the old way it was done was if a mistake happened, the Minister resigned or he was relieved of his commission. It does not happen now and, therefore, there is, as I am aware, some discussion in the literature about what administrative law does about this to render accountable in a new way ministerial decision making. Now, that is the essential large issue of policy that may be presented by this appeal.

MR McCUSKER: It is, your Honour, yes.

KIRBY J: Now, what I am asking you is, are you aware of law review or public administration articles which deal with this large issue?

MR McCUSKER: I know there is some, your Honour. I regret I cannot at the moment point to it.

KIRBY J: I, for one, would like to have access to them. I am not going to decide this on what the House of Lords said in Gough.

MR McCUSKER: No, nor would I suggest that this Court should, but I pointed to Gough simply as illustrating that it is not necessarily the case that you confine the question of apprehension of bias to the decision-maker himself or, in that case, the justices.

McHUGH J: No, but Sussex Justices was concerned about the administration of justice and no suspicion about process of administration of justice could be allowed to stand, and it has had little to do with bias. It just happened to be the particular aspect of it was that the client had an interest in the outcome of the proceedings, or may have had an interest. But if there is any interference with the administration of justice, one sets aside the decision. It does not depend on bias. But you just do not set aside administrative decisions because there has been some interference of the administrative process. You have to find a ground of judicial review.

MR McCUSKER: I cannot readily name the case, but one of the cases that is in the authorities listed, one of the Justices there referred to this question of whether bias in the course of administrative proceedings is somehow a different test from that applicable to judicial proceedings, and gave the illustration of a person who could walk away from a court feeling that justice was done and seen to be done in the case of a traffic charge but find that an administrative procedure had unfairly taken away his house. The point being that administrative procedures are not to be viewed as necessarily on a lesser scale, of less importance to the community than judicial proceedings. Administrative proceedings, and the decisions made in the course of those proceedings, may well have far-reaching effects, just as far reaching as judicial proceedings.

GUMMOW J: Yes, but different measures of accountability, you see.

MR McCUSKER: Yes, certainly but, with respect, still measures of accountability apply. Your Honours, unless there is something further I can assist you with on this important issue, I can only conclude by saying that if this Court, with respect, were to conclude that in the circumstances where a Minister is being advised and expected to get disinterested advice, receives advice which from its genesis was the result of discussions in which a person, Miasi here, had an interest which he failed to declare in the outcome, a significant interest, that would send an unfortunate message to the public service and the administrative procedures generally because it would seem to indicate that nothing arises out of that at all. Mr Miasi can still go on giving advice, and Ministers may make decisions believing that the advice is disinterested - - -

McHUGH J: The short answer to that is that such public servants would be dismissed out of hand, would they not?

MR McCUSKER: The problem still remains so far as the decisions that have been made. Let us suppose Mr Miasi had a million shares, not 40,000. He may say, "All right, I'm dismissed but so what? The decision has been made and it is favourable to me, and I've made money from it and I've not disclosed my interest which, if disclosed, might have caused a Minister to take a different view of the advice which he thought was from a disinterested department."

CALLINAN J: He had less than a thousandth interest, did he, in it?

MR McCUSKER: I think it was 40,000 out of 40 million, but - - -

CALLINAN J: 40,000 out of 40 million, and then there was an 80 per cent interest in the tenement.

MR McCUSKER: Yes, there was some discussion about that before the Full Court. Your Honour, my answer to that is that you have to look at the circumstances of the individual. 40,000 shares in 40 million may not look to be a large percentage, but it is not percentage - - -

CALLINAN J: No, I am just wondering, was there any attempt to quantify the value, or how much the value would have been enhanced by the exploration licence, or anything of that kind?

MR McCUSKER: No, there was not, your Honour. However, it is accepted that if Hot Holdings were successful, the outcome would increase the value of Mr Miasi's shareholding, but by how much it is impossible to say.

KIRBY J: But surely, as a matter of legal principle, if we are considering legal principle, you apply the approach of Immanuel Kant. You ask, what happens if this becomes a common rule?

MR McCUSKER: Yes. Also - - -

KIRBY J: It is intolerable.

MR McCUSKER: And there has never been any suggestion that a de minimis principle should apply here. If you have one share, you might say, well, perhaps de minimis, but we are talking 40,000 shares, a not insubstantial parcel. May it please your Honours.

GLEESON CJ: Thank you, Mr McCusker. We will adjourn until 10.15 tomorrow morning.

AT 4.22 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 17 APRIL 2002