The bias rule

Regulation 5.33 of the Public Service Regulations 1999 provides amongst other things that the procedures used for a review must have due regard to procedural fairness. Procedural fairness generally requires that the decision-maker must act without bias or an appearance of bias (the ‘bias rule’). To satisfy the bias rule, the decision-maker must objectively be considered to have an impartial and unprejudiced mind on the question that they are required to decide. An apprehension of bias arises in the circumstances where a fair-minded observer might reasonably suspect that the decision-maker was not impartial.

For example, an applicant sought a primary review of a decision with their agency. The agency allocated the primary review decision back to the original decision maker. This provided that the primary reviewer and the original decision maker was the same person. The applicant sought a secondary review with the Merit Protection Commissioner (MPC) who considered that the decision to allocate the primary review decision to the original decision maker gave rise to concerns about the actual and/or potential bias by the reviewer in their decision regarding the employee’s application for primary review.

Given the close proximity of the reviewer to the original decision, as the decision maker, it would have been better practice for the employee’s application for primary review to be considered by another suitable, appropriate and independent delegate.

A reviewer’s role is to review the action or decision, which necessarily involves coming to an independent view of the merits of the case. Reviewers need to reach their conclusions by ‘stepping into the shoes’ of the original decision maker and independently considering the evidence, the submissions by the agency and review applicant, and apply their own judgement and knowledge.

This is unlikely to occur if the original decision maker and the reviewer are the same person as it may raise the reasonable apprehension of bias and cause a potential conflict of interest. The MPC recommended the agency set aside the decision and refer the application for primary review to a new delegate.