Laws v Australian Broadcasting Tribunal - [1990] HCA 31 - HCA 1987 case summary — Zoe

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Laws v Australian Broadcasting Tribunal

[1990] HCA 31

High Court of Australia|1987-12-11|Before: McHugh JJ, Morling J, Brennan J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1987-12-11

Before

McHugh JJ, Morling J, Brennan J

Source

Original judgment source is linked above.

Judgment (125 paragraphs)

[1]

High Court of Australia Mason C.J. Brennan, Deane, Gaudron and McHugh JJ. Laws v Australian Broadcasting Tribunal [1990] HCA 31

[2]

ORDER Appeal allowed in part. Vary the orders of the Full Court of the Federal Court by ordering that the first order of Morling J. be set aside and that in lieu thereof it be ordered that the respondent not proceed with the holding of an inquiry of the kind referred to in its letter of 11 December 1987 to the appellant while either the Chairman or Ms. Bailey is present in her capacity as a member of the respondent. The appellant to pay the respondent's costs of the appeal.

[3]

The issue for decision in this appeal is whether, in the unusual circumstances which have arisen, the Australian Broadcasting Tribunal ("the Tribunal") can hold an inquiry under s. 17C(1) of the Broadcasting Act 1942 Cth ("the Act") into the proposed exercise of its substantive powers in relation to the alleged contravention by the appellant of one of the radio programme standards prescribed by the Tribunal and, if so, whether any or all of its members would be precluded from participating in that inquiry by reason of actual or apprehended bias. In this Court it is not disputed that three of the then members of the Tribunal would be disqualified from so participating, subject to the doctrine of necessity, by reason of their participation in a decision made on 24 November 1987 to the effect that the appellant was in breach of the relevant standard. What is now in contention is whether the filing and maintaining of defences of justification and qualified privilege by the Tribunal in an action for defamation brought by the appellant against the Tribunal and Ms. Janette Paramore, the Director of its Programs Division, arising out of an account given by Ms. Paramore in a radio broadcast of the decision of 24 November, and the broadcast of that account, have the effect of disqualifying all or any of the members of the Tribunal from participating in such an inquiry on account of actual or apprehended bias, subject again to the operation of the doctrine of necessity.

[67]

Section 119(1) arms the Tribunal with power to give directions to persons who present programmes in live broadcasts and persons who pass or select programmes. The appellant was a person who fell within the first of these two categories. The power is not exercisable unless the preliminary condition stated - non-compliance or contravention as the case may be - is satisfied and the person to be directed is given an opportunity pursuant to s. 119(2) to show cause. But for the absence of words conditioning the exercise of the power on the opinion or satisfaction of the Tribunal that there was a non-compliance or contravention, it could not be doubted that an apprehended exercise of the power would attract the rules of natural justice or the duty of fairness, thereby imposing an obligation on the Tribunal to give the person a fair opportunity of presenting his or her case against the giving of a direction, including an answer to the alleged non-compliance or contravention. So much is established by the long line of authority beginning with Cooper v. Wandsworth Board of Works [3] and including Delta Properties Pty. Ltd. v. Brisbane City Council [4] ; Commissioner of Police v. Tanos [5] ; and Twist v. Randwick Municipal Council [6] . Here the giving of a direction in terms of s. 119(1)(c) would prohibit a person from engaging in the activity of presenting programmes in live broadcasts or passing or selecting programmes for broadcasting and the giving of a direction in terms of par. (d) would impose restrictions on such activities, in either case adversely affecting the person to whom the direction is given in his or her occupation. In this context the preliminary condition must be read as requiring a finding by the Tribunal that it is satisfied that there has been a relevant non-compliance with programme standards or contravention of the Act and the opportunity to show cause for which s. 119(2) provides must be read as extending to the issue of non-compliance or contravention as the case may be as well as to the appropriateness of giving a direction in terms of par. (c) or (d). Indeed, that is the natural construction which the words of s. 119(2) invite.

[93]

However, we do not consider that the inference drawn in the preceding paragraph, taken in conjunction with the other circumstances which we have described, would lead a fair-minded observer to conclude that the members of the Tribunal, apart from those who participated in the decision of 24 November, would bring other than an unprejudiced and impartial mind to the resolution of the issues which would properly arise in an inquiry to be held under s. 17C: see Livesey v. New South Wales Bar Association [18] . In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case. In other words, the observer would take account of the circumstances which led to the bringing of the defamation action and the filing of the defences. While it would not be proper to attribute to the fair-minded observer the understanding that a lawyer would have of the capacity of the members of the Tribunal to make an independent decision uninfluenced by previously expressed opinions and conflicting interests (see Vakauta v. Kelly [19] ), such an observer must be taken to appreciate that the defences filed by the Tribunal do not amount to assertions of belief or admissions. Consequently, there is no sufficient reason for an observer to conclude that the defences amount to a prejudgment of the issues to be determined in an inquiry under s. 17C into the alleged contraventions of R.P.S. 3. He or she would understand that the corporate action of the Tribunal in filing defences to the action brought by the appellant did not involve a judgment of the issues in the action by the individual members of the Tribunal. Moreover, the action is not brought to enforce any personal liability on the part of Tribunal members as individuals. Although the action, if successful, would result in a verdict against the Tribunal in its corporate capacity, it is scarcely likely that government would fail to ensure that the Tribunal had available to it funds to meet the amount of any verdict. In the result, there is no reason for the observer to suppose that any of those members who participate in the inquiry would have any material interest, direct or indirect, which would induce him or her to bring other than an impartial and unprejudiced mind to bear on the resolution of the relevant issues.

[102]

Examination of the provisions of Pt II of the Act discloses that the Tribunal is an administrative body entrusted with the general supervision of television and radio broadcasting in Australia. It "is a body corporate" which consists "of a Chairman, a Vice-Chairman and at least one other member but not more than 6 other members" (ss. 7(2)(a), 8(1)). At a meeting, a quorum is constituted by a majority of the members currently holding office (s. 15B(3)). The Chairman may, "for the purposes of an inquiry", constitute "a Division of the Tribunal" consisting of a lesser number of members (see s. 15C). Section 16(1) of the Act provides that the Tribunal's "functions" are, inter alia: "(a) to grant, renew, suspend, revoke and accept the surrender of licences;" and, "(d) to determine the standards to be observed by licensees in respect of the broadcasting of programs and in respect of programs to be broadcast". In the performance of those functions, it is unavoidable that the Tribunal and its members will have an ongoing relationship with licensees under the Act and will also have recurrent contact and dealings with at least some individuals engaged in television or radio broadcasting. Inevitably, all or some of the members of the Tribunal will, over a period of time, form general views about such licensees and about the character, responsibility and standards of at least some individuals engaged in the broadcasting of television or radio programmes. 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.

[109]

In these circumstances, it appears to me that the question whether the Tribunal, as a whole, is affected by an appearance of bias in relation to its proposed inquiry must be answered in the affirmative. The standard by reference to which that question must be answered is that of the reasonable and fair-minded lay observer. It must be presumed that such an observer has knowledge of the material objective facts. At the cost of some repetition, it is desirable to recapitulate those facts. They are: (i) a Division or Committee of the Tribunal, constituted by three of its members including the Chairman and Vice-Chairman, has already, in a published "decision", prejudged the primary issue in the proposed inquiry in a way that is unfavourable to the appellant; (ii) the full Tribunal, presumably constituted by at least a majority of its total membership, accepted and acted upon that prejudgment of the primary issue when it decided to hold an inquiry about whether, on the basis of the earlier "decision", it should "exercise its powers". As has been said, it is now common ground that, in the words of the Tribunal's written submissions in this Court, that "decision" of the Tribunal was "based upon" the earlier "decision" and was consequently "null and void"; (iii) even after the appellant had instituted legal proceedings to challenge the validity of those "decisions", a senior officer of the Tribunal publicly made statements in judgmental terms to the effect that the earlier decisions were justified and that the appellant was in fact guilty of the breaches of R.P.S. 3; (iv) the Tribunal, in this Court, has asserted that the making of those public statements was "justified" as an exercise of the Tribunal's own "statutory powers" and has conceded that Ms. Paramore was acting as the representative "of the entity the Tribunal" when she made them; (v) the Tribunal as a corporate entity is now actively seeking to justify Ms. Paramore's statements and to establish the appellant's guilt of the relevant breaches of R.P.S. 3 in proceedings in the Supreme Court arising from those statements; and, (vi) on the hearing in the Federal Court, the Tribunal did not disclose what lay beyond its institutional facade. In particular, it called no evidence to establish that some, and if so which, of its then members were not involved in any of the above matters. In all these circumstances, an informed and fair-minded lay observer would, in my view, inevitably entertain a reasonable apprehension that the Tribunal as a whole is affected by disqualifying bias in the sense that there would be a real likelihood that some or all of the members involved in any fresh inquiry under s. 17C would not bring an impartial and unprejudiced mind to the determination of the question whether the eight programmes contravened R.P.S. 3.

[111]

The question whether the application of the rule of necessity would involve positive and substantial injustice must be answered by reference to the circumstances of the particular case. In a case where the appearance or actuality of disqualifying bias is the result of conflict of interest or extrinsic knowledge, the relevant circumstances will include the manner in which the conflict of interest arose or the extrinsic knowledge was obtained (see, generally, Tracey, Disqualified Adjudicators: The Doctrine of Necessity in Public Law, Public Law (1982), 628, at pp. 634ff.). In particular, the circumstance that, in such a case, the conflict of interest or extrinsic knowledge arose from or was caused by the deliberate act of the party who would otherwise be entitled to complain of bias may dictate a negative answer to the question whether the application of the rule would involve positive and substantial injustice to that party. Conversely, the fact that such a conflict of interest or extrinsic knowledge arose from or was caused by some voluntary collateral act of the adjudicator may constitute a powerful consideration favouring an affirmative answer to that question. In the present case, any conflict of interest which might be seen as arising from the defamation proceedings can, to some extent, be said to have been caused by the appellant who instituted those proceedings. There has, however, been no suggestion that the defamation proceedings were instituted for the purpose of creating a conflict of interest or are other than a genuine reaction to Ms. Paramore's published statements which, as has been said, were made on behalf of the Tribunal at a time when they should never have been made. On the other hand, any such conflict of interest can, to some extent, be said to have been intensified by the action of the Tribunal in raising and maintaining the defence of justification. There is, however, no suggestion that any individual member has acted otherwise than in accordance with what she or he saw as the proper discharge of her or his functions as a member of the Tribunal or that any member of the Tribunal has voluntarily assumed a role inconsistent with participation in the discharge of the Tribunal's functions. In all the circumstances, I do not think that the case is one in which the answer to the question whether the application of the rule of necessity would cause positive and substantial injustice is significantly influenced by the apportionment of responsibility or blame for the existence of the appearance or actuality of disqualifying bias.

[119]

At least six members of the Tribunal did not participate in the decision of 24 November 1987, and at least two of them were appointed after the defences to the defamation action were filed. Even if four of those six members were parties to the filing of the defences, the rules of natural justice would only require their disqualification if a reasonable bystander would entertain a reasonable fear that they were incapable of bringing fair and unprejudiced minds to the inquiry: Reg. v. Watson; Ex parte Armstrong [32] ; Livesey v. New South Wales Bar Association [33] . A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry: Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [34] ; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [35] ; Re Shaw; Ex parte Shaw [36] . When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. Thus, in Ex parte Angliss Group, the mere fact that the statement of reasons for a previous decision gave rise to the conclusion that members of the Conciliation and Arbitration Commission tended to favour the adoption of a principle of equal pay for both sexes as soon as it was economically and industrially practicable to do so was not a ground for disqualifying them from sitting on an application for an equalisation of rates of pay for male and female employees brought in reliance upon their reasons. This Court rejected the notion that a fair and unprejudiced mind was "necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it" [37] . In Re Shaw , the transcript showed that a judge of the Family Court of Australia had expressed opinions adverse to the case for the husband before his counsel had opened his case. Nevertheless, Gibbs A.C.J., with whose judgment Stephen J. and Wilson J. agreed, said that the evidence did not justify "a conclusion that the views which the learned judge expressed, although strong, were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind" [38] .

[121]

In the present case, the most that can be said against those members of the Tribunal who were parties to the filing of the defamation defences is that they believed that, upon the evidence then known to them, the assertions in the defences were true and that on that evidence they would probably have decided the s. 17C issues adversely to the appellant. But to attribute that belief and that decision to them does not give rise to a reasonable fear that they would not fairly consider any evidence or arguments presented by the appellant at the s. 17C inquiry or that they would not be prepared to change their views about the issues. When the defamation proceedings against the Tribunal were commenced, the members of the Tribunal were required to file the Tribunal's defence on the evidence that they then had in their possession and without the benefit of evidence or argument from the appellant. When all the evidence is heard and the case argued, it may become apparent to them that the defences which the Tribunal filed cannot succeed. However, there is no suggestion that the filing of the defences was itself an abuse of process or the product of prejudice. To the contrary, the hypothesis is that the members of the Tribunal believed that the assertions in the defences were true. But neither logic nor the evidence makes it reasonable to fear that, because of that belief, the members of the Tribunal will not decide the case impartially when they hear the evidence and arguments for the appellant at the s. 17C inquiry. No doubt the Tribunal could have sought a stay of the defamation proceedings until the inquiry was concluded. Whether the application would have been successful is highly debatable: cf. Rochfort v. John Fairfax & Sons Ltd. [39] . In any event, the failure to apply for a stay does not give rise to a reasonable fear that the members of the Tribunal would not be moved by any evidence or argument presented by the appellant. Neither the filing of the defences nor the failure to apply for a stay nor both matters in combination gives rise to any reasonable fear or suspicion that the members of the Tribunal will not determine the s. 17C inquiry with fair and unprejudiced minds.