THE COURT. These are applications for an order nisi for a writ of prohibition directed to the Honourable John MacBean, a Deputy President of the Australian Industrial Relations Commission (the Commission), prohibiting him from further participating in the hearing and determination of certain proceedings before a Full Bench of the Commission. The central principle involved in the applications is well settled. It is that a judge or person obliged to act judicially in the discharge of the functions of a public tribunal should not sit to hear a matter if, in all the circumstances, a party or the public might entertain a reasonable apprehension that she or he might not bring an impartial and unprejudiced mind to the resolution of the question or questions in it. (See, eg, Livesey v New South Wales Bar Association - [1992] HCA 30 - HCA 1992 case summary

Judgment (7 paragraphs)

[1]

High Court of Australia Deane, Toohey AND Gaudron J Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd [1992] HCA 30

[2]

THE COURT. These are applications for an order nisi for a writ of prohibition directed to the Honourable John MacBean, a Deputy President of the Australian Industrial Relations Commission (the Commission), prohibiting him from further participating in the hearing and determination of certain proceedings before a Full Bench of the Commission. The central principle involved in the applications is well settled. It is that a judge or person obliged to act judicially in the discharge of the functions of a public tribunal should not sit to hear a matter if, in all the circumstances, a party or the public might entertain a reasonable apprehension that she or he might not bring an impartial and unprejudiced mind to the resolution of the question or questions in it. (See, eg, Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 7838 IR 114 at 118.)

[3]

The precise practical requirements of that principle vary from case to case. They will be influenced by the nature, function and composition of the particular tribunal. Thus, the operation of the principle in a case such as the present where it is sought to prevent a member of the Commission from participating in the determination of particular proceedings is governed by a number of considerations relating to the nature and functions of the Commission, the prescribed or desirable formal qualifications and practical experience of those appointed to discharge those functions, the nature of the contests involved, and the Australian industrial environment.

[4]

In the discharge of its functions, particularly that of the prevention of inter-State industrial disputes, the Commission is required to act promptly and effectively. In a context where its members are permanent and its resources are limited, it is desirable that the members, between them, possess a vast fund of practical background knowledge and experience extending over all facets of Australian industrial relations. Indeed, s 20 of the Industrial Relations Act 1988 Cth (the Act) requires each member of the Commission to "keep acquainted with industrial affairs and conditions". A potential or actual industrial dispute extending beyond the limits of any one State is liable to encompass a variety of issues or potential issues between the parties or potential parties to it. 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 the 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. Again, the Act itself obliges the President of the Commission to constitute industry panels to which a Presidential member and at least one Commissioner shall be assigned: s 37(1).

[5]

In these circumstances, the need for caution which this Court has consistently identified (see, eg, Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Re Polites (1991) 173 CLR, at 86-87; 38 IR 119-120; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116) in relation to applications for an order preventing a member of a statutory tribunal from participating in the discharge of the functions of that tribunal by reason of apprehended bias is particularly apposite when such an application is directed against a member of the Commission. It is that care must be taken to bear in mind that the basis for disqualification by reason of apprehended bias is that there are grounds upon which a party or the public might entertain a reasonable apprehension that the particular member of the Commission will not decide the case impartially or without prejudice. The basis for disqualification is not merely that the member's past decisions, on questions of fact or law, might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties. Nor is it that she or he has had previous contact or experience, as a member of the Commission, with the facts involved in the particular matter, with the context in which the particular matter arises, or with one or more of the parties involved in the particular matter.

[6]

Notwithstanding the arguments of counsel for the prosecutors, we consider that the material in the present case does not found a conclusion that the principle to which we have referred will be offended if Deputy President MacBean's participation in the pending proceedings pursuant to s 115 of the Act continues.

[7]

It is true that Deputy President MacBean's reasons for decision on the application pursuant to s 111(1)(g) of the Act contain some strongly worded conclusions in relation to some issues of fact which may be involved in the s 115 proceedings. Those conclusions were reached by him after a hearing extending over some 45 days of the Commission's time. If what was involved were two sets of proceedings between different interests about unrelated matters, Deputy President MacBean may well have been disqualified from participating in the s 115 proceedings by reason of an impermissible appearance of bias and prejudgment. The s 111(1)(g) and the s 115 proceedings are, however, related proceedings between the same interests. Indeed, both sets of proceedings must be seen as steps in one overall contest between the same group of interests and arising out of a common set of facts. In that context, it appears to us to be unreasonable and impractical to think that the determination of factual issues at one point in the resolution of the overall contest could or should preclude involvement in other steps, the outcome of which may depend on the same facts or some aspect of them. Should the applicants' submissions be accepted, it would be necessary for the Commission, which is not a court, to be re-constituted in a way which would exclude Deputy President MacBean from participating in the s 115 proceedings and, to the extent that the same factual issues were involved, to determine them ab initio, notwithstanding that they have already been determined by Deputy President MacBean after a 45 day hearing. That would be impractical and, moreover, would permit of inconsistent findings of facts in what is, in essence, one overall contest. Furthermore, to the extent that the respondent, Finance Sector Union of Australia, argues in the s 115 proceedings that the terms of the agreements "are not in settlement of an industrial dispute" (see s 115(9)(a) of the Act), the facts relied upon by this respondent come largely from the mouth of Mr Swartz, the President of the Metway Group Industrial Organisation of Employees, who is a prosecutor in one of the applications. In those circumstances, we are firmly of the view that the principle to which we have referred does not preclude Deputy President MacBean from participating in the s 115 proceedings.

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Judgment (7 paragraphs)

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