John McMillan bats away claims of apprehended bias against John Lloyd

By Stephen Easton

Friday October 19, 2018

Law professor John McMillan has defended the investigation he conducted into complaints against former Australian Public Service commissioner John Lloyd on behalf of the Merit Protection Commission.

In the following statement, McMillan (pictured) responds to a series of complaints about the process which the Senate Committee of Privileges put on the public record this week. The MPC presented its findings to parliament’s presiding officers one day before Lloyd resigned from the role and they were tabled on August 21.

The experienced jurist responds to the former APS commissioner’s claims that he exceeded his brief and that he should have been excluded due to apprehended bias — a concept McMillan understands quite well — and notes that he mostly found in Lloyd’s favour, dismissing all but one of nine allegations.

John McMillan writes:

Mr Lloyd complained in correspondence to the MPC and to the Presiding Officers that I should not have participated in this inquiry by reason of an alleged conflict of interest relating to Mr Lloyd. The complaint relates to comments I made that were reported in The Guardian on 30 September 2015. My comments were made when I was being interviewed about my reflections on Commonwealth freedom of information developments, following my retirement as Australian Information Commissioner in July 2015.

In that interview I was critical of the lack of political and executive support for FOI, as reflected in the Government announcement that it would abolish the Office of the Australian Information Commissioner. I was quoted in the article as saying: “I think it’s terrible that the head of the Treasury and the head of the public service commission feel comfortable in speaking out and saying FOI has gone too far, without having to explain what is meant by it’s gone too far.” I then observed that “FOI protects any document that needs protection … and the [Information Commissioner] decisions make it plain.”

When I was first contacted by the MPC about this inquiry I noted that I had been quoted in The Guardian article three years previously. I expressed my view that I was not precluded by the bias rule of procedural fairness from providing the assistance the MPC requested. The MPC agreed. My view rested on three considerations.

First, my comments were not framed or reported as a personal criticism of Mr Lloyd. My view was that any criticism by a senior official that FOI “has gone too far”, should explain what it is meant by “too far”. My comments were about the administration of FOI, which was an issue for which I had responsibility for over four years as an independent statutory officer. A central part of my role was to promote open government and support for the FOI Act. This was well understood publicly, and was the reason I was interviewed by The Guardian.

Secondly, I have good knowledge of the bias rule of procedural fairness – including through my roles as a statutory office holder for 15 years (in four roles), as an academic administrative lawyer (including co-author of Control of Government Action, now in its fifth edition) and in dealing squarely with procedural fairness issues in the controversial Operation Prospect investigation and report that I concluded as Acting NSW Ombudsman in 2015-17.

The test for apprehended bias is whether a fair-minded observer might reasonably suspect that a decision maker (or person conducting an inquiry) is not impartial. The case law requires that an allegation of bias is firmly established, and there must be a logical basis for doubting that a decision maker will deviate from deciding a matter on its merits. As to prejudgment, there must be a reasonable fear that a decision maker has a pre-formed view or closed mind on the issues to be resolved, and will not be open to persuasion by evidence or submissions.

There was no logical basis for supposing that in light of my reported views on FOI administration three years previously I would not bring an open mind to the allegations I was asked to investigate relating to Mr Lloyd. Those allegations related to the creation of a document in the Australian Public Service Commission that was provided by Mr Lloyd to the Institute of Public Affairs. I had no prior familiarity with those issues or the IPA, and I had not expressed any view upon them. I note that I sustained only one of the nine complaint allegations against Mr Lloyd that I was asked to examine.

Thirdly, in the course of my roles over 15 years as Ombudsman, Integrity Commissioner and Information Commissioner I conducted a large number of inquiries and reviews and published a large number of reports. Many of those reports were critical (sometimes strongly so) of Commonwealth and State administration, touching all areas of government.

It was never suggested that this should disqualify me from conducting further inquiries on different – or even similar – issues. It was always understood that my expression of views on the matters under consideration was a routine and expected aspect of the independent oversight functions I was discharging, and that I would bring an open mind to the next issue to be investigated. The same applies to other areas of law and administration – for example, it is routine that judges and tribunal members express forceful views about the issues to be resolved and the conduct of proceedings.

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