The slipping biscuit and the question of Apprehended Bias

Bill sipped his tea and watched as Tom strolled over to the mango tree.

“Bill,” said Tom, “have ya heard about this mini village they’re talking about building near the airport?”

“Might’ve.”

“It’s not right,” said Tom.

“Maybe.”

“The Council owns the land, they signed the owner’s consent, and they’re also the planning authority assessing the application. How does that work?”

Tom was getting into full indignant stride.

Dog, sensing trouble, curled into a tighter ball and pretended to sleep, keeping one eye open in case a biscuit escaped from Bill’s saucer.

“Council can wear more than one hat,” said Bill. “Doesn’t automatically mean anyone’s done anything wrong.”

“Same head under both hats, though,” said Tom.

Bill took another sip.

“That’s the question.”

“What question?”

“Whether the decision will be made with an open mind—and whether a reasonable person, knowing the facts, would believe it will be.”

Tom frowned. “You mean bias?”

“Not necessarily actual bias. There’s another thing called apprehended bias. It doesn’t mean proving somebody is crooked. It means the setup might give a reasonable person cause to wonder whether the decision is genuinely independent.”

“Well, there you go!”

“Not so fast,” said Bill. “First you need the facts.”

“What facts?”

“Who negotiated the proposed lease? Who authorised the owner’s consent? What does the delegation register say? Who is assessing the application? Who gives those officers their instructions? Who reviews their report? And who makes the final decision?”

Tom looked towards the airport.

“So if the CEO was involved in the commercial deal, and the planning officers ultimately answer to the CEO—”

“Then it’s reasonable to ask what safeguards are in place,” said Bill. “But asking the question isn’t the same as already knowing the answer.”

“What about the planning officers?”

“They may be completely honest and professional. The question isn’t whether they’re good people. It’s whether the structure protects their independence—and gives the public confidence that they are genuinely free to recommend either approval or refusal.”

Tom scratched his chin.

“So you’re saying there might be nothing wrong?”

“I’m saying I haven’t followed it closely enough to know,” said Bill. “But if the process is properly separated and independent, Council should be able to explain how.”

Dog’s ears pricked as half a biscuit slipped from the saucer.

Bill caught it before it hit the ground.

“Actual bias,” Bill said, placing it back on the saucer, “is when Dog steals the biscuit.”

Dog closed his eyes.

“Apprehended bias is when a reasonable observer might think he’s only pretending to be asleep.”

For anyone interested, the Australian Law Reform Commission explains apprehended bias here. The article discusses judges, but the general principle can also apply to government and council decision-making:

https://www.alrc.gov.au/inquiry/review-of-judicial-impartiality/spotlight-on/judge-public-and-the-test/

What Bill is Really Saying

“Apprehended bias” sounds as though someone has been arrested.

It doesn’t mean that. Nobody has been apprehended and Dog is not assisting police with their enquiries.

Before going further, two separate questions need to be kept separate.

The development application process asks whether the proposed workers’ village is acceptable in planning terms. That includes matters such as traffic, noise, lighting, location, infrastructure and effects on nearby residents and businesses. Those concerns belong in a properly made submission.

The apprehended bias question is different. It is about governance: who helped advance the proposal, who authorised the use of Council land and whether the people assessing the DA are genuinely independent of that process.

Raising concerns about governance is not a substitute for making a proper DA submission. Equally, the public notification process does not answer questions about how Council came to offer its land or how the assessment is being kept independent. If people are concerned about both, they need to raise both.

Apprehended bias does not mean anyone has proved that Council, the CEO or a planning officer is biased. It means the way a decision is being made could give a reasonable person cause to doubt its independence.

And there are some direct questions Council should answer.

Who authorised the owner’s consent, and under what authority?

Was that power delegated by the elected Council? If so, when was it delegated, where was the decision recorded and what were its exact words?

Did the delegation merely authorise the CEO to negotiate a lease—or did it also authorise him to give owner’s consent for a development application?

There is another important question.

A Council spokesman said that, during a workshop on 23 July 2025, Council “offered the option of utilising land at the aerodrome that had no current lease.” The reported Council resolution authorising lease negotiations came later, in November. That statement appears in Council’s response published here.

What exactly does “offered” mean?

• Who made the offer on Council’s behalf?

• What authority did that person have at the time?

• Was the offer written down?

• Was it merely a suggestion to investigate the site, or was Council offering to lease the land?

• Did the developer approach Council seeking this particular land, or did Council identify and offer the site?

• What process did Council follow in deciding to offer this particular site to this particular developer, and were other possible users, uses or commercial processes considered?

The answers matter.

There is a difference between Council passively receiving a DA over its land and Council actively finding land for a developer, offering it as a solution, granting owner’s consent, negotiating the lease and then assessing the resulting DA.

That still does not prove the planning decision is biased. But it makes the independence of that decision a serious question—not something Council can answer with “trust us”.

Council should publish the workshop record, the authority relied upon when the land was offered, the later delegation, the owner’s consent and the identity of everyone who will assess, review and decide the DA.

It should also explain whether anyone involved in offering the land or negotiating the commercial arrangement can instruct planning officers, review their work or alter the assessment report.

If Council wants public confidence, the assessment should be placed outside the control of those involved in progressing the land deal. An independent planner should report directly to the elected Council, the complete report should be published, and councillors should make the final decision openly with reasons.

Bill is not saying Council has already decided the outcome.

He is asking whether Council helped create the proposal it must now judge—and, if it did, what protects the independence of that judgment?

Nothing I have seen establishes that anything unlawful, improper or biased has occurred. This may simply be a sound process that Council has not explained well. But where one organisation is landowner, prospective lessor and planning authority, explaining that process is part of maintaining public confidence.

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