Discussion
22 In determining whether a decision-maker is disqualified by reason of an appearance of bias the question is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; Ebner v Official Trustee (2000) 205 CLR 337 at [6]; Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 at [27].
23 The nature of the tribunal and the proceedings must, however, be taken into account. In Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 66 ALJR 583 at 583 it was said that "the precise practical requirements of [the Livesey] principle vary from case to case. They will be influenced by the nature, function and composition of the particular tribunal". Speaking of the Australian Industrial Relations Commission, it was said at 583-4 -
"The nature of industrial relations in this country makes it inevitable, that in a particular industry, the leading employer and employee organisations, and their officers, will be frequently involved in dispute with one another. Obviously the functioning of the Commission requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of that dispute and, inevitably, with facts relevant to the dispute and with one or more of the parties to the dispute. In that regard, it has long been recognised that, in most cases, that familiarity is an advantage rather than a disqualifying factor."
24 Again, in Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 it was said at 86-7 that -
" … the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's power's exercised. Qualification for membership cannot disqualify a member from sitting."
25 And again, the system of judicial appointment from senior practitioners means that there will often have been past professional association between a judge and counsel or solicitors appearing in proceedings, or even a party. Mere past association will generally not be held to give rise to a reasonable apprehension of bias, although it is a question of degree: see Re Polites; ex parte Hoyts Corporation Pty Ltd at 91 and other cases collected in Aussie Airlines Pty Ltd v Australian Airline Pty Ltd (1996) 135 ALR 753 at 759-61. In Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272 at 276 it was said that public knowledge and acceptance of such past professional association was "built into the legal system".
26 Being appointed for a fixed term and (generally) eligible for reappointment, a Chairperson will not uncommonly wish to obtain reappointment. The position will provide a satisfying occupation to its holder and valuable remuneration. The lay observer will perceive a Chairperson's interest in obtaining reappointment.
27 A Chairperson's appointment by the Governor is an appointment on the advice of the Minister, and in reality an appointment by the executive government. The Tribunal hears appeals largely, as indicated by its full title, by government employees, and a Chairperson is constantly deciding appeals in which one party is a governmental entity. To the extent to which the fair-minded lay observer might reasonably apprehend that a Chairperson might not be impartial and unprejudiced because the decisions affect the government which holds the power of reappointment, in some cases no doubt the Minister within whose responsibility lies the reappointment, knowledge and acceptance of that situation is built into the Act. (As shown by Mr Hopkins' reference to the appointment of part-time members, appointment may be without a selection process.) So also is there built in the participation in the decision of appeals by members nominated by the employer and the employee respectively.
28 But there is much more in the present case. The observer knows more than that Mr Hopkins is deciding appeals to which the Department, and other governmental entities, are parties. The observer knows that Mr Hopkins asked a favour of the Department, by providing a reference. Mr Hopkins did so by an approach to Ms Blinkhorn, but his objective was the Department. He put himself in an impossible position. Whether the request was left outstanding, whether the Department provided a reference, or whether the Department declined to provide a reference, in my opinion the fair-minded and informed observer might reasonably apprehend that his mind might be influenced. It might be influenced in favour of the Department, in hope of or in thanks for the reference; or it might be influenced against the Department because, apparently unlike the other so-called stakeholders, it was unwilling to provide a reference.
29 Nothing in a Chairperson's status as an appointee for a fixed term eligible for reappointment builds in acceptance of a Chairperson so conducting himself or herself, in aid of reappointment, as to become beholden to a party to a current appeal or disappointed by that party's response. The representative members being representative, it is all the more important that the Chairperson be and appear to be impartial and unprejudiced. The reappointment was plainly a matter of great importance to Mr Hopkins. Notwithstanding the caution in relation to disqualification identified in re JRL; ex parte CJL (1986) 161 CLR 342 at 352 and later decisions, I consider that reasonable apprehension of bias in the further participation of Mr Hopkins in the appeal has been established.
30 I respectfully do not agree with Mr Hopkins' view that he should be able to put his best case forward by obtaining a reference from the Department. Where there might be a reasonable apprehension that, from gratitude or disappointment as a result of requesting a reference, he might be partial and influenced in his decision in appeals to which the Department is a party, nothing in the nature of the Tribunal and its proceedings requires that this be accepted as built into its system of dispute resolution. In particular, the legislature's adoption of appointment for a term with eligibility for reappointment does not do so. The nature of the appointment gives the occasion for the vice in Mr Hopkins' conduct. It does not justify or excuse it.
31 I do not think that, as was submitted by Mr Ellam, the Commissioner waived any objection to Mr Hopkins sitting in this appeal because he did not object to Mr Hopkins sitting in the appeals of 29 July and 10 and 17 August 2004, or that the absence of requests that Mr Hopkins disqualify himself in those appeals indicates that his conduct was an acceptable aspect of the system within which the Tribunal operates. Save that they were promotions appeals, not disciplinary appeals, nothing is known of the other appeals. The Commissioner may not have been an active party, his participating officers may have been unaware of the relevant communications with Ms Blinkhorn, or for other reasons the absence of requests may be explicable.
32 Mr Ellam submitted that the Commissioner's application to this Court was premature and that, in the exercise of this Court's discretion, the Tribunal should be left to make its decision: he said that a decision in favour of the Commissioner would mean that apprehension of bias would "lose any weight". He understandably drew attention to the stage which the appeal had reached and the hardship if the hearing thus far is put at nought. It was common ground that the Act did not provide a means for substitution of another Chairperson for Mr Hopkins, and that unless the parties agreed otherwise the hearing would have to start afresh.
33 I do not think that we should condone a hearing infected by reasonable apprehension of bias. This application was heard on 24 August 2004. An interlocutory order was made whereby the Tribunal's hearing of 26 August 2004 could take place but the Tribunal could not deliver its decision or make any order determining the appeal. In my opinion, an order should be made prohibiting further continuance of the appeal with Mr Hopkins as Chairperson. Whatever the decision on "penalty" be, it must be a flawed decision because of the apprehension of bias. I am of this view notwithstanding the regrettable and undesirable prospect of a fresh start to the hearing.
34 Mr Ellam unsuccessfully opposed this application, and should pay the Commissioner's costs. He asked that, if relief was given, an indemnity certificate be granted pursuant to s 6(1) of the Suitors Fund Act 1951, submitting that the application was an appeal against the decision of a court within that provision. It may have been an appeal (ex parte Parsons (1952) 69 WN (NSW) 380) and the Tribunal may be a court, but I question whether Mr Hopkins' refusal to disqualify himself was the decision of the court: see Barton v Walker (1979) 2 NSWLR 740; Rajski v Wood (1989) 18 NSWLR 512. The submission was not developed, and Mr Ellam should have the opportunity to support his request more fully. If it is maintained, it can be determined on written submissions.
35 I propose the orders -