The recusal application will be listed for hearing in-person in Brisbane at 10:00am (AEST) on Tuesday, 25 February 2025. The Applicant will be required to attend this hearing. A Notice of Listing will be issued in due course. The other parties are invited, but not required, to attend the recusal hearing."

• [37] On 24 February 2025, as directed, Mr Pannu filed submissions. Mr Pannu submitted, inter alia, the following:

• The listing of a 'recusal application for hearing on 25 February 2025 constitutes a jurisdictional error as no application was ever made;
• The complaint regarding not being afforded procedural fairness and the Commissioner engaging in racial discrimination remains pending before the President, and any attempt to list or determine related issues before receiving directions from the President is improper;
• If no racial discrimination is found [by the President], then no procedural unfairness arises;
• Proceeding with a hearing on an application which is never made for recusal may improperly influence the President's consideration of the complaint; and
• The Commission ought to dismiss the purported recusal application.

• [38] The hearing proceeded before me on 25 February 2025. Mr Gurjit Singh appeared on behalf of Mr Pannu. The other parties did not attend and were not required to attend. I will henceforth refer to Mr Gurjit Singh as Mr Singh as he was the only person named Mr Singh present.

• [39] In attempting to understand the written submissions dated 17 February 2025 against the written submissions dated 24 February 2025, the following was discussed:

Commissioner: ... But do you assert, Mr Singh on Mr Pannu's behalf, that I can't determine the matters before me impartially?

Mr Singh: I think you can decide the matter. Yes, I think you can decide the matter.

Commissioner: So remembering that the matter that we were on course to deal with was Ms Stephanou's application to have the matter withdrawn.

Commissioner: Sorry, dismissed. She invited Mr Pannu to withdraw it. He chose not to. So she's made an application and that was the course that I was taking. I had it listed for this week and then once I saw this communication, I formed the impression that Mr Pannu considers that I cannot impartially determine that application before the Commission.

Mr Singh: Actually not - that's not our view actually. I think we only placed the fact that we are not going to make an application for disqualification on basis of application of bias because, as you might remember, you invited us to do that in the last hearing if we feel that way.

So we were only trying to clarify that aspect that we will not be making that application for your disqualification on application of bias or bias simply because our complaint relates to only that aspect of your conduct where you [recommended] her to terminate the retainer between Ms Athina Stephanou and Mr Pannu and we feel that was very - and so that's the only part we have - we are - but that's the only part which is in front of President for the complaint and I think in the Commission you can still decide the matter based on laws and fact.

So I don't think there is any problem for you to - unless President think otherwise, you know.

Commissioner: Well, Mr Singh, the issue is, is that there's an assertion that's been made that I'm racist against Mr Pannu.

Commissioner: And that I was so in that conference of 29 January 2025.

Commissioner: And that's a very serious matter for the Commission.

Commissioner: And then you have full confidence in me, do you, in hearing Ms Stephanou's application to have the matter against her dismissed and am I then no longer racist?

Mr Singh: I think from our perspective, when - we can't make that application because for that - yes, we can't make that application because there are two - it is - since the matter is in front of President, it is difficult for me to make that application in front of you that you disqualify because of apprehension of bias because that is not a hearing - what happened in there. That's the problem. If that happened in a hearing, then it's completely different matter, that happened ‑ ‑ ‑

Commissioner: But how do you say that I acted in a racist manner against Mr Pannu on 29 January and am I able to - if you're right about that, just turn it off, am I, and then deal with him impartially in all the matters going forward. I mean, that's a very difficult concept, don't you think, to say that - turn from inquiries that Mr Pannu made of me following the 29 January 2025 conference to now assertions that I am actually racist because that's the correspondence that I've just read out there.

Mr Singh: I think the - sorry, the application disqualify is, I believe that if that is a hearing on 29 January ‑ ‑ ‑

Mr Singh: Yes, it was a conference. It's not a hearing.

Mr Singh: So you need some evidence that actually that is something done that is at worst to Mr Pannu in decision‑making. It is not a decision‑making. So that's why I think we don't ‑ ‑ ‑

Commissioner: He's unhappy with the outcome because we know there that Ms Stephanou spent some time considering her position and, as I understood, in the conference of 10 February, in fact, wrote through her lawyers to Mr Pannu and asked for him to withdraw the application against her and my notes say that he chose not to respond and then the conference of 10 February there was advice there that an application to dismiss will be made. So that's the path that was taken and we were progressing along that path.

• [40] The discussion continued in respect of the correspondence dated 17 February 2025:

Commissioner: ...then was alarmed to then read those assertions in the material that Mr Pannu provided from paragraph 70 where the assertion is that not an apprehension of racism, I'm actually racist. That's the assertion. So what am I to do with that, Mr Singh?

I can't just set that aside once that very strong matter is asserted by Mr Pannu. I can't just simply say, 'Well, he thinks I'm racist, but I'm going to just deal with this anyway.'

Mr Singh: I think it is a complicated situation. I definitely understand that and I think I'm - yes. It is - I think it is - like, President should have - President have options to deal with it by removing you from the matter or referring that complaint. I think our preferred course will be that - see that matter complaint to (indistinct) the next Commission. As far as racist is concerned .......

...there are - it's not a racist in a sense of a street calling someone racist. It is more a systematic thing which happened, that's what we are referring to that if someone comes to - let's say a rape victim. I'm just giving an example, coming to a court and there is offender and someone gives advice to offender, 'Okay. You do this and you will be let off from this.'

I think that is very serious - which we feel is very serious what happened and it is of assistance and these are the remedies which we all respect and we really have nothing personal against you, but it is more, kind of a systematic thing which we feel it needs to be addressed and going forward, I think I understand your concern as well that it is very difficult for you to move on from here deciding the matter.

But because even though we won't say that because I think other party will say if you decide in our favour that you actually, you know, it can become controversial. That's I would now understand from hearing you, you know.

Commissioner: And it will be published about whether or not I ought to recuse myself.

Commissioner: Because I do consider that Mr Pannu has asserted that I can't impartially determine this matter because he has asserted that I am racist against him.

Commissioner: I appreciate that it's Mr Pannu's first time in the Commission dealing with an antibullying matter and I hope it is, I don't know, but at all conferences that I hold in relation to antibullying matters, this may assist, if you think about it following this hearing, but I'll always flag with the parties what does the future look like.

Will any party no longer be part of each - of their lives and if I can assist you with some very common matters that come before the Commission, we get lots of management right contract matters where somebody is a caretaker in a high rise building and there'll be people on the executive, like the secretary, the president, the treasurer and there's inevitably some frictions between the caretaker who holds management rights and the executive, or even some residents.

And I'll - they'll come before me in the same manner, like even in person here and I will ask the very simple question of, 'When is the next AGM?' and I'll be told what month it is and I'll have some idea in comparison to, you know, is it six months away, is it two months away, and I'll ask the persons named, the executive, the treasurer, et cetera, the secretary, 'Are you going to stand on - at the AGM?'

And sometimes they'll say, 'No, I don't want to stand. I'm not interested in standing', and therefore they'll say, 'I want to be excused. I don't want to deal with this any manner - I don't want anything to do with the caretaker.' And some - they also will say, 'Yes, I intend to stand.' So I'm always interested in - regardless of anybody's heritage, I'm always interested in what does the next few months look like and so that was what was posed of Ms Stephanou.

Do you agree that it was posed of Mr Baljit Singh as well as to, 'What's your involvement', and he said something to the effect of, 'I'm not going to come to the restaurant much. I'm not very well.' Do you accept, Mr Singh, that that was said?

Commissioner: So I was inquiring of Mr Baljit Singh as to what likelihood is he to bully Mr Pannu.

Mr Singh: Yes. I think it's coming to the understanding of - my understanding is a little bit different in terms of ICERD. It's not - and I - look, I think it comes from equality, you know, and I understand this is how the practice is - this is the practice - could be the practice in this institution.

Commissioner: What, inquiring about the future because that is a jurisdictional limb in an antibullying matter?

Mr Singh: Yes. That's a practice which we all - which you must be following throughout, right, but having relisted Mr President this issue is not an - it's not certain that it is a - like, we raised that issue. We want to know about it, it comes back to me and it helps me to understand as well this is what it is, you know. But I think I read your other decision as well, which you referred on that day that you had decided previously when the risk is minimised (indistinct).

Commissioner: But the problem is, is that I can't unread those paragraphs 70 onwards where it's asserted by Mr Pannu that I'm racist against him and so it forms in my mind an assertion by him that I can't impartially determine the matter and that's why I've called this matter on for hearing today and you've resisted, but how am I to unhear and unsee those assertions?

Mr Singh: There's nothing available in the world to - there's no remedy available to unhear or unsee, unfortunately. You know, we - so I really can't - I think best thing is to stand aside maybe, you know.

Commissioner: Yes. Well, that's essentially what you're asking me to do and I have to determine whether I ought to.

Mr Singh: I have made - I mean, sometimes you make an application to the member, they reject it, they say, 'Even though we say it is bias', sometimes they reject it and just continue hearing the matter.

Commissioner: Yes. So you understand, don't you, that a member will decide for themselves whether they ought to recuse themselves.

Commissioner: And that is their job, they ought not to administratively have that reassigned.

Commissioner: They have an obligation to decide the matter which is should they recuse themselves.

Mr Singh: Yes. I mean, that's really - I think I leave that matter in your hand, if you really think it can't be decided in a impartial way because you have read those things and you have - hear that so it's a difficult position, yes.

Commissioner: So you accept now that there is before the Commission an assertion that I can't impartially determine the matters before the Commission being the Ms Stephanou's application for dismissal and the substantive application.

Mr Singh: I think to some extent, yes. I accept that, yes. I think it is - it will be controversial, because at the end you're going to write the decision, and to be honest, it could be, yes, if you decide in their favour we could say that you recommended them, so that's why you decided in their favour, and if you decided in our favour and they can say - you know, it could become controversial. That's very sure, you know.

Commissioner: So is the assertion before the Commission that there's apprehended bias or actual bias?

Commissioner: Not actual bias? Because I thought I had read that Mr Pannu asserted actual bias.

Mr Singh: If you are considering - it's purely because I think the standard of bias is very high, you know. So if I say it's - I would say it's apprehension of bias, because the standard of bias is very high, you know. Like, to be honest, legally speaking, I think it's very difficult to even argue that application of apprehension of bias, to be honest, but because of only reason, because my mind is stuck that it is not hearing, it is conference, what happened there. It is not even a - you know, right now what happening is a hearing route, you know, anything that - but on that date is not hearing, it is purely conference, and as you said, you explore things, you inquire things. So from that perspective the application to make that application is actually very procedurally not right. That's something I consider myself.

Mr Singh: Because what you - on that day you didn't decide anything.

Mr Singh: And when someone is - an apprehension of bias or bias, there is a minimum level of test that something done against a person decision‑wise, you know. So that's the problem that I'm ‑ ‑ ‑

Commissioner: Parties make applications for apprehension of bias even in respect of some communication that might be sent out or the fact that they weren't party to come communication, so recusal applications are made at various times in the Commission, not relevant to a decision that a member has made but because of potentially some procedural matters.

Mr Singh: Yes. I think that's possibly the understanding of some - could be some people, but I think that's - unfortunately, that's not my understanding. So that's why I didn't carry on with that idea.

• [42] In trying to establish Mr Pannu's assertions, the discussion continued:

Commissioner: You are asserting that I can't impartially determine the matters before me.

Mr Singh: Yes. We are actually saying what happened that day is racism, but that's conference.

Commissioner: How can I turn that switch off then, if you're right? How can you ask the President to find that I was racist on 29 January but I wouldn't be racist in any future matters?

Mr Singh: See, that comes to institutional - how they manage it, and that's what I don't really know, to be honest. That's something very ‑ ‑ ‑

Commissioner: See, it looks like you think that I can't impartially determine the matters before me.

Mr Singh: If I consider apprehension of bias - if I see from that perspective apprehension of bias and bias based - disqualification based on apprehension of bias or bias, I don't think that's an appropriate thing to application, but we do have concerns about ongoing involvement in this, but because of legal constraints we can't make that application. That's the problem.

Mr Singh: Like I said, because it was not a hearing, what you did was a conference, right?

Mr Singh: So there's no decision made. So at the very minimum there needs to be some decision made which - or ‑ ‑ ‑

Commissioner: That's not right, Mr Singh. If you have any concern about a member and whether they can impartially determine the matter before them, then applications are made all of the time about matters that are not decisions.

Mr Singh: I'm sorry, when I say 'decision', I don't mean the end, like formal decision, but during the hearings here there are things said or done - for example, refusing a party to cross‑examine a witness. That's a decision as well. So I'm referring that kind of decision in that hearing, you know, not the ultimate final hearing.

Commissioner: Yes, but at the end of the day, because of what has been written and said, I understand that Mr Pannu thinks that I can't impartially determine the matters before me. Am I right about that? You can take some time, if you wish, to ‑ ‑ ‑

• [43] Mr Singh requested an adjournment. Following the break the following was discussed:

Mr Singh: Actually, we discussed and I think it is very - we decided it is very important to completely stay focused on the legal side of the things because there is only remedy, that is, recusal application, and for that, there can be two grounds which is apprehension of bias and bias. And, like I said, we don't think that criteria to make that application is met and so it is - we don't believe there is - we could - we say that you can't decide impartially.

Commissioner: Yet, you've made a complaint asserting that I'm actually racist.

Commissioner: So you want there to be a finding that I was racist on 29 January but would not be racist in further handling this matter.

Commissioner: Well, the complaint to the president, you want there to be a finding that I was racist on 29 January in the conference but you're now asserting that you don't think that I would be racist in dealing with the matter going forward. Is that what you're saying?

Mr Singh: Yes. Racist is not a permanent state of mind, you know? I don't think racist is a permanent state of mind.

Commissioner: Well, I don't know if that's what you think of me.

Mr Singh: No, I don't think racist is a permanent state of mind. Racism can be unknown racism as well. Sometimes people do say things and that's what covers in ICERD. So racism is not a permanent state of mind. That's definitely - my understanding is our minds works in a way - a mysterious way sometimes. We have our - and let me say this. Our biases are so - we practice our life in such a way, like, you ask these questions to everyone, right?

Mr Singh: And quite right. So it is very dynamic - you know, minds - when different minds, you know, like, communicate with each other. I think it is our understanding that it was a racist act on that day but it is not a permanent state of mind, you know? It is not something that, you know, you will be racist forever, you know? I don't think so. I'm sorry, it's a serious matter, but I'm just saying it is not something - like ‑ ‑ ‑

Commissioner: So what gives you comfort that if you think I was racist on 29 January that I wouldn't be racist going forward?

Mr Singh: I think my faith. I mean that's something I don't want to bring in but my faith is something that everything is in his - in God's command. I rest my belief in my faith that good will be done, justice will be done, so that's my faith, basically. You know, if you say so. But I didn't want to bring it up but I think you asked me a very specific question of my intent. I don't lie. So, going forward, I trust God.

• [44] In written correspondence to the Commission, Mr Pannu has asserted that I racially discriminated against him, I was an alleged offender, and I was accused of misconduct.

• [45] Despite the written submissions of 24 February 2025 urging the Commission not to convene a hearing in respect of a recusal application, when pressed during the hearing, Mr Gurjit Singh, on behalf of Mr Pannu, stated:

(a) "...well that it is very difficult for you to move on from here deciding the matter";[1]

• (b) "I think best thing is to stand aside maybe, you know";[2]

• (d) "Yes. We are actually saying what happened that day is racism, but that's conference."[4]

• [46] Despite suggesting in other oral submissions that it would be unnecessary to recuse myself, the above submissions were made, and accordingly, I consider that Mr Pannu has made an application to the Commission that I ought to recuse myself on the basis of apprehended bias.

• [47] Members of the Commission have an obligation, on receiving an application such as the one made by Mr Pannu, as messy as it is ultimately put, to hear the application and consider whether there are grounds to recuse himself or herself from dealing with the matter.[5]

• [48] The principles associated with determination of applications for a member to no longer deal with a matter for reason of apprehended bias are well-established and are summarised succinctly by the Full Bench in Woodside Energy Ltd v The Australian Workers' Union:[6]

"[38] The applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy.[7] In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[8] The application of the apprehension of bias principle requires two steps: first, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[9] It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.[10]

[39] Some additional propositions are relevant to this appeal. First, disqualification on the ground of apprehended bias must be "firmly established",[11] and a finding of apprehended bias is not to be reached lightly.[12] Second, an apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially.[13] Third, where apprehended bias is asserted on the basis of a previous expression of opinion on an issue by the decision-maker, consideration of whether the "logical connection" required by the second step identified in Ebner exists will require an analysis of the role and importance of that issue in the matter to be determined.[14] Finally, where an apprehension of bias is said to arise by reason of prejudgment, the following principles stated by the Federal Court Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission[15] apply:

'The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied. One particular occasion of apprehended bias is where it is said, as Cabcharge had alleged here, that the judge has relevantly prejudged matters in controversy. In this context, disqualifying bias results in a state of mind that is not open to persuasion. That is, in this species of apprehended bias, "[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 ... at 531-2 [71]-[72] per Gleeson CJ and Gummow J. That is, in such a case as the present, it must be firmly established that a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view: see Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 ... at 352 per Mason J.'" (references in original)

• [49] The hypothetical fair-minded lay observer is not conceived of as a lawyer, but a member of the public served by the courts or, in this case, the Commission.[16] As much as there is a need to decide matters impartially, there is also a need to guard against acceding too readily to suggestions of appearance of bias so as to encourage forum shopping.[17]

• [50] Mr Pannu has asserted that at the telephone conference of 29 January 2025 I gave strategic advice to Ms Stephanou to allow a way for her to make an application to have the substantive application against her dismissed. Mr Pannu asserted that this is because I 'prefer' Ms Stephanou. Further, Mr Pannu asserted that this put himself, Mr Baljit Singh and Mr Panwar, all of Punjabi or Indian heritage at a disadvantage.

• [51] In any conferences convened before me in respect of applications for an order to stop bullying, I traverse the jurisdictional issues before the Commission. This includes whether the Commission can be satisfied that bullying at work has occurred in the past, and if there is risk of it occurring in the future. That is, of course, the only way the Commission could be empowered to exercise a discretion to make orders.

• [52] During the telephone conference of 29 January 2025, this was discussed given there were three named persons, all directors of three separate corporate entities. Two of those, Mr Baljit Singh and Ms Stephanou, had corresponded in writing seeking to be removed from the proceedings which had been refused by me, and in fact, they had been directed to attend the conference.

• [53] Mr Pannu, through Mr Gurjit Singh, agrees that I made inquiries of both Ms Stephanou and Mr Baljit Singh in respect of their future association with Mr Pannu. It was unnecessary to make such an inquiry of Mr Panwar, given he is the owner of the restaurant and would have continued, daily interaction with Mr Pannu when he returns to work.

• [54] I could not have known that when I was making inquiries about Ms Stephanou's future interaction with Mr Pannu, Mr Lamb would answer that he expected to receive instructions following the conference for Ms Stephanou to cease her contractual relationship with Mr Pannu. In response to Mr Lamb's statement, naturally I informed the parties that if that were to occur, it would be available for Ms Stephanou to make an application in respect of whether s.789FF(1)(b)(ii) of the Act could be met.

• [55] I do not consider that a fair-minded lay observer would have a reasonable apprehension that I would not bring an impartial and unprejudiced mind to the substantive application, nor any interlocutory matters that might need to be dealt with.

• [56] Mr Pannu was unable to identify any logical connection between the alleged apprehension of bias and the obligation to act impartially.

• [57] Further, Mr Pannu's submission that if the complaint about me to the President was dismissed, there would be no procedural unfairness to him does not make sense.

• [58] I decline to recuse myself from dealing with Mr Pannu's application.

Correspondence will be sent to the parties with a listing date in respect of the interlocutory application made by AIS Immigration Solutions and Ms Stephanou.

[1] Transcript of hearing, 27 February 2025, PN 40.

[5] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2019] FWCFB 7311, [30].

[6] [2022] FWCFB 192.

[7] [2000] HCA 63, 205 CLR 337.

[8] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[9] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[10] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [21] per Kiefel CJ and Gageler J.

[11] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J, 360 per Wilson J.

[12] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [56] per Nettle and Gordon JJ.

[13] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J.

[14] British American Tobacco Australia Ltd v Peter Gordon and Anor [2007] NSWSC 109 at [97].

[15] [2010] FCAFC 111, [25].

[16] Charisteas v Charisteas [2021] HCA 29, [21].

[17] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 66 ALR 239, 248.

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