HRNG ADELAIDE, 7 May 1991 #DATE 26:6:1991 Counsel for Appellants: Mr J.J. Doyle, QC,

Solicitor-General with Mr M.F. Johns Solicitors for Appellants: B.M. Selway, Crown Solicitor Counsel for Respondent: Mr M.L.B. Ardlie Solicitors for Respondent: Wallmans

JUDGE1 KING CJ The appellants have appealed to this Court against an order made by a judge of the court prohibiting the appellant Lewis "from hearing and determining the disciplinary inquiry in relation to the applicant" under the provisions of the Government Management and Employment Act 1985. 2. On 1st March 1990 the respondent made certain comments on the "Keith Conlon Show" broadcast by the Australian Broadcasting Commission over Radio Station 5AN on the topic of marine pollution control. In particular it appears that he was critical of an agreement entered into in 1987 between the South Australian Government and Broken Hill Associated Smelters which, he claimed, permitted the discharge of excessive pollutants into the marine environment at minimum treatment cost and he conveyed certain information on air relating to those matters. The respondent is and was at the relevant time a public employee appointed to the public service within the meaning of the Government Management and Employment Act. He was an officer in the Department of Personnel and Industrial Relations. 3. Section 67 of the aforesaid Act, so far as material, is as follows: "67. An employee who (a) contravenes or fails to comply with

(i) a provision of this Act; or (ii) a direction given to the person as an employee by a person with authority to give that direction (whether being authority derived from this Act or otherwise); ... (h) except as authorised under the regulations, discloses information gained in the employee's official capacity, or comments on any matter affecting the Public Service or the business of the Public Service, is liable to disciplinary action." 4. The appellant Strickland is and was at the material times the Commissioner for Public Employment and the Chief Executive Officer of the Department to which the respondent was attached. In consequence of the Keith Conlon Show broadcast, he suspected that the respondent may be liable to disciplinary action by reason of being in breach of section 67. He therefore decided, as authorised by section 68(1), to hold an inquiry to determine whether the respondent was liable to disciplinary action. He gave notice in writing of the inquiry to the respondent. The grounds of suspicion set out in the notice are as follows: "1. On or about 1 March, 1990 you failed to comply with a direction given to you as an employee by a person with authority to give that direction. Section 67(a) of the Government Management and Employment Act, 1985. PARTICULARS On Thursday, 1 March, 1990 you commented publicly on matters outside your current official duties by making comments on marine pollution control on the "Keith Conlon Show" broadcast by the Australian Broadcasting Commission over Radio Station 5AN after you were directed by the Commission for Public Employment by letter dated 27 June, 1989 not to make such comments.

2. On or about 1 March, 1990 you made unauthorised comment on a matter affecting the business of the Public Service. Section 67(h) of the Government Management and Employment Act, 1985. PARTICULARS At about 8.30 a.m. on Thursday, 1 March, 1990 you made unauthorised comment on a matter affecting the business of the Public Service by making comments on marine pollution control on the "Keith Conlon Show" broadcast by the Australian Broadcasting Commission over Radio Station 5AN."
3. The appellant Strickland, as authorised by section 43, delegated all his powers and functions in relation to the holding of the inquiry to the appellant Lewis.
4. The respondent instituted these proceedings for judicial review. He sought various orders by way of relief but the substance was that he desired to prevent Mr. Lewis from conducting the inquiry on the grounds that he was or might be biased. Affidavits by the respondent and both appellants were filed and there were a number of exhibits to them. When the matter came on for trial, it was agreed that it should proceed on the affidavits. No application was made to cross-examine the deponents or to call oral evidence.
5. The respondent's case at trial was based not upon actual bias but upon appearance of bias. The learned trial judge summarised his reasons for his decision in the following passage: "In the end I have the gut feeling that Mr Lewis was a most unfortunate choice as delegate and Mr Strickland should have chosen someone else. Like Mr Strickland, Mr Lewis is too close to the issues, he knows the applicant too well. The applicant has a legitimate complaint: he is justified in 'entertain(ing) a reasonable apprehension that (Mr Lewis) might not bring an impartial and unprejudiced mind to the resolution of the question'."
6. The relevant facts must be gleaned from the affidavits. The respondent was an officer of the Engineering and Water Supply Department from 1978 to
7. During that time he was a Trade Waste Engineer with responsibility for monitoring and controlling industrial waste discharges to sewers and cross connection issues, that is the prevention of the pollution of water supplies from industrial and other commercial sources. During that time the appellant Lewis was Director-General of the Department and he remained so until 1987 when he left that department. In 1982 the South Australian Government entered into an agreement with G.H. Michell and Sons (Aust.) Pty. Ltd., Wool Scourers, of Salisbury which, in the view of the respondent, "allowed G.H. Michell to discharge, with the minimum treatment, extremely large quantities of waste to the sewers". He claimed that this was done at minimum expense to G.H. Michell. He took a stand in the department in opposition to the agreement. He maintained that a charge should be imposed on G.H. Michell for the disposal of the waste. The respondent believed that Mr. Lewis supported the agreement. Mr. Lewis, however, in his affidavit has deposed that he "did not specifically support or oppose the final agreements but, as a public servant, carried out the wishes of the government..." There was no cross-examination of Mr. Lewis on his affidavit. The parties agreed, however, that this case should be decided on the assumption that Mr. Lewis expressed the view that there should be no charge for the disposal of waste and that he was therefore in conflict with the views of the respondent.
8. Shortly after the Cabinet approval of the Michell agreement in 1982, the Leader of the Opposition made statements in Parliament which indicated that he was in possession of information from Government sources. Mr. Lewis made a comment about the "leak" to the respondent. In his affidavit the respondent says "I know that he strongly suspected that I had taken the matter to persons who indirectly had taken it to parliament". Mr. Lewis, in his affidavit, denies that he entertained any such suspicion. He says "I did not have any suspicion whatsoever that it may have been the applicant herein. The applicant herein was a competent officer and there were no grounds to support such an opinion. Furthermore it could clearly have been any of a number of people in the two departments involved. I would not have agreed to the applicant herein to be part of the group which subsequently prepared the draft ministerial reply and briefing notes if I had suspected that he had been involved in any 'leak'". It seems to me that the respondent's surmise as to Mr. Lewis' statement of mind cannot prevail over Mr. Lewis' forthright averment as to his true state of mind which was not cross-examined upon.
9. After leaving the Engineering and Water Supply Department, the respondent went to the Department of Environment and Planning. During the past four years he has raised four grievance appeals against decisions taken by senior management of that department. Senior management of that department includes Messrs. Geoffrey Inglis, Michael Madigan and Ian McPhail. In his affidavit, the respondent asserts that these men "are closely associated with Mr. Lewis" and that Mr. Lewis was partly responsible "for their selection during the re-organisation of the department by him in about 1983". It is clear, however, from the affidavit of Mr. Lewis, that he was not involved in the selection process with respect to these three men except that he was a member of the selection panel which made the recommendation for the appointment of Mr. Madigan. His affidavit specifically states "that my only association with Mr. Ian McPhail, Mr. Madigan and Mr. Inglis has been limited and restricted to normal intergovernmental business".
10. Mr. Lewis has been a member of the Board of the Pipelines Authority of South Australia since 1st January 1985 and has been Chairman since 1st April
11. The respondent, in his capacity as President of the Consumers' Association of South Australia, ran a campaign against a gas price agreement between the Pipelines Authority of South Australia, Santos Limited and the South Australian Government during the years 1984, 1985 and 1986. He made various allegations in the course of that campaign as to the illegality of the agreement and as to what he believed to be "corrupt relationships between the various parties". There appears to be some overlapping between this campaign and Mr. Lewis' tenure of office as member of the Board, but Mr. Lewis was "completely unaware of the applicant's campaign" until the respondent raised it in the course of this matter.
12. It is not clear whether there will be any issue before the person holding the inquiry as to the respondent's liability to disciplinary action. The respondent, in an affidavit, states that "One of the arguments which I propose to make in justification is that ultimately I have a democratic right to go outside the Public Service system if that is the only way in which a matter can be resolved". It is not clear whether this is urged as a defence to the alleged contraventions of section 67 or whether it is urged merely in mitigation of penalty. Whether or not there is any issue as to liability to disciplinary action, there clearly will be questions to the appropriate penalty, which must be resolved at the inquiry.
13. The principle to be applied is clear. A person is disqualified from adjudicating if a reasonable person being aware of the relevant facts would suspect that he might not bring a fair and unprejudiced mind to the determination of the matter. Mr. Lewis is therefore disqualified from conducting the Inquiry if, and only if, a reasonable person being aware of the facts set out above, would suspect that Mr. Lewis might not bring a fair and unprejudiced mind to the determination of the questions, including penalty, which are the subject matter of the Inquiry.
14. The principle will vary in its application according to the circumstances of the varying situations in which it must be applied and it must be applied in the light of any relevant statutory provisions governing the functions of the adjudicator whose impartiality and detachment are in question. This point is put by Deane J in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 90 as follows: "It has long been settled that the content of the requirements of procedural fairness may vary according to the particular circumstances of a case, including the nature and general functions of the entity required to observe them and the relationship between that entity and the person to whom procedural fairness must be accorded. Plainly, such variations may occur in the content of the requirement that a tribunal required to observe procedural fairness be not tainted by either the actuality or the appearance of disqualifying bias. Thus, acquaintanceship with or preconceived views about a party of a kind which would create the appearance of disqualifying bias in a judge exercising the judicial power of a court of law may be permissible and unobjectionable in a statutory body which, while required to accord procedural fairness in the discharge of a particular function, is entrusted with other functions which necessitate a continuing relationship with those engaged in a particular industry."
15. An important consideration in the present case is that the statute provides that the disciplinary authority in a case such as the present is to be the Chief Executive Officer of the administrative unit in which the employee is employed. That seems to me to envisage that the disciplinary inquiry will be conducted by an officer who is likely to have considerable personal knowledge of the activities of the department or the administrative unit and may well have considerable knowledge of the employee. It appears to be contemplated that the officer conducting the inquiry may well have personal knowledge of the administrative context in which matters which are the subject of the inquiry have arisen and of the participants in those matters. He may well have some general view about the character and personality of the employee who is under suspicion. The observations of Deane J in Laws v Australian Broadcasting Tribunal supra at p.91 may be applied, mutatis mutandis, to the present situation. "The fact that some or all members of the Tribunal entertain such general views about a licensee or an individual involved in broadcasting would not of itself constitute disqualifying bias for the purposes of a s.17c inquiry concerning the conduct of particular

broadcasting activities by that licensee or individual. That follows, in my view, from the need to adjust the content of the requirements of procedural fairness to what is appropriate to the circumstances of the particular case. Even if the requirements of procedural fairness were not to be so adjusted, it would nonetheless be possible to discern in the Act an overriding statutory intent that preconceived general views of a type which must almost inevitably result from the performance by members of the Tribunal of functions under the Act should not, of themselves, constitute disqualifying bias. On the other hand, such preconceived general views about a licensee or an employee of a licensee must be distinguished from prejudgment of the very issue involved in an inquiry under the Act." 17. I do not think that the power of delegation detracts from this consideration. It is available for use when, for any reason, the Chief Executive Officer does not wish to conduct the inquiry or is unable to do so. In particular, it is available if the Chief Executive Officer has been so involved in the relevant transactions as to cause him to feel that he might be prejudiced or as to give rise to a reasonable suspicion that he has prejudged the very issue involved in the inquiry or maybe unfairly prejudiced in relation to it. It is clearly not intended to be used in every case in which the Chief Executive Officer has some general knowledge of the matters in issue, participants in those matters or the administrative context in which they have occurred. 18. It is clear that Mr. Lewis was not involved in the matters which have given rise to this inquiry. The criticisms made on the Keith Conlon Show related to an agreement made in 1987 between the South Australian Government and Broken Hill Associated Smelters. There is no evidence that Mr. Lewis was in any way involved in the negotiation of or the making of that agreement. He left the Engineering and Water Supply Department in 1987 and the agreement was made in that year. The evidence does not disclose whether the making of the agreement occurred before or after Mr. Lewis' departure from the Engineering and Water Supply Department. In any event, there is no evidence that the Engineering and Water Supply Department was involved in the negotiation of or making of the agreement. On the contrary it appears from the evidentiary material placed before the court by the respondent that responsibility for that agreement rested with the Department of Environment and Planning. The appearance of bias is said to arise not from Mr. Lewis' involvement in the transactions which are the subject of the inquiry but from his prior knowledge of and dealings with the respondent. 19. When the true facts, as distinct from the respondent's surmises, are analysed, the basis of the complaint appears to amount to no more than this. Some eight years ago the respondent took a strong view in the Department against an agreement similar to that which is the subject of the comments complained of in the grounds for the inquiry. That view was not shared by Mr. Lewis to the extent that he took a contrary view on the issue of charging for the disposal of waste. Mr. Lewis condemned a leak of information which occurred at that time but did not relate that leak to the respondent. In subsequent years the respondent acted in a way which some might have regarded as amounting to making himself a nuisance; but, on the evidence, those activities did not relate to or affect Mr. Lewis. Mr. Lewis was a member of the Board of the Pipelines Authority at a time when the respondent was conducting a campaign against the authority's price fixing, but there is no suggestion that that campaign attacked Mr. Lewis personally and the evidence is that he was unaware of the respondent's involvement in any such campaign. 20. I am unable to feel that those facts considered either individually or in combination could conceivably lead a reasonable observer to suspect that Mr. Lewis might be prejudiced in his consideration of the matters alleged against the respondent which constitute the subject matter of the inquiry. I do not think that any reasonable person could regard Mr. Lewis' membership of the Board of the Pipelines Authority as a possible basis for bias. The respective attitudes taken by the respondent and Mr. Lewis to the 1982 agreement really have no bearing upon the present issue. The present issue relates not to the nature of the views expressed by the respondent during the broadcast but to the unauthorised nature of those comments. There is no reason to suppose that Mr. Lewis would allow any difference of opinion which he had with the respondent in 1982 as to the Michell agreement or as to the issue of charging for the disposal of industrial waste, to influence his determination of matters relating to the unauthorised disclosure of information concerning the agreement in 1987. Naturally Mr. Lewis condemned the unauthorised disclosure of information in 1982 as one would expect any conscientious senior public servant to do. It must be assumed that any conscientious senior public servant would also condemn an unlawful and unauthorised disclosure of information in 1987. That is not a reason for suspicion of bias. 21. The respondent's final complaint was expressed in his affidavit as follows: "One of the arguments which I propose to make in justification is that ultimately I have a democratic right to go outside the Public Service system if that is the only way in which a matter can be resolved. In my observation his style of running a department was autocratic to the extent that there was a change in management policy after he left. Indeed I know there was a report which included that very subject." 22. This appears to amount to an assertion that Mr. Lewis' attitudes to the management of a Government department are such as to render him less likely than another to take a sympathetic view of the respondent's actions. An adjudicator is not biased because he brings to his task his own particular qualities of character and temperament or because he possesses certain general attitudes to aspects of life or certain types of conduct. The rules of natural justice do not confer upon a person who is the subject of proceedings a right of challenge to or veto of the adjudicator. Such a person has to accept a properly chosen adjudicator with such personal characteristics and habits of thought as he may possess. All that natural justice relevantly requires is that the adjudicator bring to bear upon the issue a fair and impartial mind. Mr. Lewis is not disqualified because a reasonable observer might think that by reason of his personal characteristics or known attitudes to departmental management, he would be less likely than another to take a sympathetic view of the respondent's actions. He is disqualified only if such a reasonable observer would suspect that he would not bring a fair, unprejudiced and impartial mind to bear on the matter. 23. I have reached the conclusion that the respondent failed to make out his case of appearance of bias. I would therefore allow the appeal, set aside the judgment appealed from and substitute therefor judgment for the respondents dismissing the action.

JUDGE2 LEGOE J I have had the opportunity of reading in draft form the judgment of His Honour the Chief Justice. The facts as disclosed from the material before the judge at first instance are set out therein and the relevant authority (Lewis v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 are set out in His Honour's judgment 2. I agree with what the learned Chief Justice has said and further agree that the appeal should be allowed and with the order he proposes.

JUDGE3 MOHR J The facts and issues are fully referred to in the reasons for judgment of the learned Chief Justice. The question for this Court is whether the learned Judge who heard and determined the application for judicial review was in error. Relying on the affidavit material, which the learned Judge did for the purpose of determining the judicial review, I can only come to the conclusion that the reasonable observer would have to suspect that Mr Lewis might be prejudiced in his consideration of the matters alleged against the respondent, which constitute the subject matter of the inquiry. I am forced to the conclusion that the reasonable observer, knowing all the facts which are contained in the affidavits, would have to come to the conclusion that the applicant and Mr Lewis, in the light of the previous history, albeit in relation to different matters had, and apparently continued to be in conflict in relation to the departmental directions relating to the publication of criticisms concerning departmental matters. The fact that the applicant is now in a different department, and the fact that Mr Lewis was not exposed to the particular matter upon which the applicant publicised his view on the broadcasting station relating to marine pollution control, would not in my opinion alter the view of the reasonable observer. In my judgment the reasonable observer would have to suspect prejudice. 2. I can see no error at all in the reasoning of the learned Judge from whom the appeal is brought. Applying the basic principles which I have briefly mentioned above, and which are referred to in the several cases discussed in argument, I am of the opinion that the learned Judge came to the right decision for the right reasons. I would dismiss the appeal.