Does Woodside have a strong case?
45 In its originating application Woodside alleges that both the Deputy President and the Full Bench committed numerous jurisdictional errors. For the purposes of its interlocutory application, however, it rested its case on two matters only. The first was that the Deputy President's Directions and the Production Decision demonstrate that there is a reasonable apprehension that she has prejudged the issues Woodside has raised concerning the AWU's application. The second was that the effect of the Production Decision caused Woodside (another kind of) procedural unfairness.
46 It is trite that a decision of a tribunal may be vitiated for either actual or apprehended bias, although a court has a residual discretion to refuse relief (Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33 at [67] per Kiefel CJ, Bell, Gageler and Keane JJ; Edelman J at [99]). As Nettle and Gordon JJ put it in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [54]:
The rule against bias is one aspect of the requirements of procedural fairness. Breach of the rules of procedural fairness, including where apprehended bias is demonstrated, constitutes jurisdictional error, attracting relief under s 75(v) of the Constitution.
47 Ordinarily, for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error, an applicant for relief is required to show that the breach was material, that is to say, that if the breach did not occur, there is a realistic possibility that the outcome could have been different: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4], [45] (Bell, Gageler and Keane JJ). But there is no such requirement here. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441; 390 ALR 590 at [33] Kiefel CJ, Gageler, Keane and Gleeson JJ explained that:
The qualification "ordinarily", and the focus on conditions required to be observed in the course of a decision-making process, are important. The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another.
(Footnotes omitted.)
48 The test for a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not have brought an impartial and unprejudiced mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The question is to be answered having regard to the legal, statutory and factual contexts in which the decision is made": Isbester v Knox City Council (2015) 255 CLR 135 at [20] (Kiefel, Bell, Keane and Nettle JJ). The hypothetical observer is taken to know the nature of the decision, the context in which it was made, and the circumstances leading to it: Isbester at [23]. A two-step process is involved. The first requires the identification of what it is said might lead the decision-maker to decide the case other than on its merits. The second requires the articulation of the logical connection between the suggested reason and the feared deviation from that course. See Ebner at [8].
49 A finding of apprehended bias is not to be reached lightly. To the contrary, it must be "firmly established". See Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J); at 364 (Wilson J); 371 (Dawson J). There must be "strong grounds" for inferring the existence of a reasonable suspicion: Re JRL; Ex parte CJL at 359-360 (Wilson J). As the AWU put it in submissions, "the reasonable apprehension that might be formed by a fair-minded lay observer must be that the decision-maker is 'so committed to a conclusion as to be incapable of persuasion to a different view' (Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 per Kenny, Tracey and Middleton JJ at [25] and [28])".
50 Where the alleged apprehension is one of pre-judgment, three additional points should be made.
51 First, an impartial and unprejudiced mind is "not 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": R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 554. As Gleeson CJ and Gummow J observed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71]-[72]:
Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias…
The 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. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. …
52 Second. the bare assertion of an apprehension of bias through pre-judgment "would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making": Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [63] (Gummow A-CJ, Hayne, Crennan and Bell JJ).
53 Third, all the circumstances must be considered and they include what the decision-maker does afterwards because that "may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures". An initial failure to hear a party or to allow it to put its case may be cured by subsequently giving it the opportunity to be heard or to put its case. See Re JRL; Ex parte CJL at 372 (Dawson J).
54 I am far from satisfied that Woodside has a strong case for final relief. Indeed, Woodside made no attempt to persuade the Court that it does.
55 Most of the argument was directed to the apprehended bias point. In its written submissions Woodside merely contended that it has "an arguable case that the conduct of the Deputy President … gives rise to a reasonable apprehension of bias" and that the three decisions are "each affected by material jurisdictional error". The arguments it mounted appear to be the same as those which were rejected by the Commission. It made no reference to the particular errors it pleaded in its originating application in either its written submissions or oral argument. In oral submissions it contended that there was "at least a strongly arguable case" that the Deputy President might have prejudged the following issues:
(a) the reliability of the petitions;
(b) whether the AWU had demonstrated a reasonable hypothesis that a majority of employees wanted to bargain, which Woodside argued (relying on INPEX Australia Pty Ltd v Australian Workers' Union [2020] FWCFB 5321; 301 IR 424); and
(c) the appropriateness of the petition method for the purposes of s 237(3) of the FW Act.
56 In its written submissions Woodside contended that [6] and [8] of the Directions were "predicated on an assumption that some method for determining majority support would be adopted" and might cause a fair-minded lay observer to reasonably apprehend that the Deputy President might have formed a view, or prejudged, that the petitions were "a reliable indicator of petitioners' wishes" and that "the reasonable hypothesis requirement had been satisfied".
57 I have considerable difficulty understanding how anything said by the Deputy President in her Directions might conceivably cause the hypothetical lay observer to think that she might not decide any of these questions impartially. After all, [6] was a mere proposal, indeed the AWU's proposal, and [8] required Woodside to file submissions on, among other things, whether it opposed the proposal and, if so, what alternative it proposed.
58 In oral argument, Woodside submitted that a fair-minded lay observer would consider "significant" what was said in [6] and [8] of the Directions together with what was said in the Production Decision. It pointed to the following matters:
that the Directions required Woodside's submissions to be filed by 21 July;
that when it lodged its application, Woodside informed the Deputy President that it could be available at short notice if she wanted to hear from the parties about the impact the determination of its application on the directions; and
that the Deputy President reminded Woodside of the directions.
59 Woodside relied on the following paragraphs of the Production Decision:
[19] The AWU submit that they oppose the Application for Production basis of relevance and individual privacy and freedom of association concerns.
[20] In particular the AWU oppose the production of the Petitions on the grounds that the Petitions were provided on a confidential basis to the FWC so that employees could feel confident to exercise their freedom of association and their statutory right to express a preference for collective bargaining.
[21] The Petition Method, whereby employee preference is captured in petitions and is provided on a confidential basis to the presiding Member, which the Member compares with a list of current relevant employees provided by the employer is the most common mechanism used in the determination of majority support determinations.
[22] It is important to note that it is the Member, not the respondent employer who must be satisfied that a majority of employees are in favour of bargaining.
[23] Members are called upon on almost a daily basis to consider contested evidence. Members are typically appointed with significant prior forensic and industrial experience. Consequently, Members typically have the necessary expertise to accurately assess the credibility of the petition data provided on a confidential basis to the FWC. Where the Member is not satisfied that the petition or petitions clearly demonstrates a contemporaneous and clear desire on behalf of a majority of employees to bargain, the Member will not grant the relevant application.
…
[25] Employer concerns as to the framing of the petition questions, the type of data gathered or the timing of data gathering are typically addressed by the provision of a blank or redacted petition as contemplated by the Directions.
…
[27] Petitions are routinely accepted in applications of this nature which contain simply employee signatures. The risk of petitions being fraudulently completed is minimised with petitions which require employee identification data (rather than simply a name or signature) which can be matched against information provided by the employer. The Directions already contemplate the parties providing this information. In this particular Application the AWU has sought to enhance the level of security by asking employees to use well know credible identity verification software. Woodside have provided no evidence to suggest that Petitions were fraudulently completed. I am not satisfied that the production of the Certificates of Completion is necessary or appropriate. In fact in the absence of evidence of such a possibility such an order given the complexity of checking IP addresses is likely to be contrary to the requirement in the FW Act that FWC determine matters in a manner that is quick, informal and avoids unnecessary technicalities.
60 In the originating application itself, Woodside only relied on [21]-[23] and [28]. I fail to see how [28] assists its case. Presumably, neither did senior counsel.
61 I accept that the impugned paragraphs suggest a predisposition towards the petition method. But that is not enough, for the reasons given at [51] above. And I am prepared to assume for present purposes that it is arguable that, reading the impugned paragraphs in isolation, a fair-minded lay observer might come to the view that the Deputy President might have pre-judged the appropriateness of the petition method. But the fair-minded lay observer would not read these paragraphs in isolation. Among other things, the fair-minded lay observer would know, and take into account, that at this stage the petition method was merely a proposal, that the Deputy President had invited Woodside to make submissions on its suitability, and that she was yet to receive those submissions. The fair-minded lay observer would also know, and take into account, the fact that the Directions required the AWU to provide a statutory declaration as to the circumstances in which the petitions were collected, as the Deputy President noted at [28]. The fair-minded lay observer would also have regard to the Deputy President's observation, also at [28] that "[i]f this evidence is contested by Woodside when it is filed by the AWU, Woodside have the opportunity to cross-examine the declarant as to the contents of the statutory declaration at the hearing of the [AWU's] Application". The fair-minded lay observer would also have read all of the reasons.
62 I note, too, what the Full Bench had to say about the impugned paragraphs at [52] of the Appeal Recusal Decision (about which no specific complaint is made in the originating application):
Woodside's submissions concerning the production decision seek to wrench it out of its context. The parts of this decision upon which Woodside relies do not have as their purpose the advocacy or defence of the petition method of assessing majority support, as Woodside contends. Rather, they constitute the Deputy President's reasons for refusing Woodside's application to seek the production of documents which would disclose the identity of the employees who signed the AWU's petition, and they would be understood by the fair-minded lay observer in this way. Thus, paragraphs [21]-[23] and [27] may only reasonably be read as explaining that the "Petition Method" (a defined term explained in paragraph [3] as referring to where the Commission "compare[s] the information contained in the Petitions with Employee identification information provided by Woodside") is the most common mechanism used by the Commission in relation to applications for majority support determinations. The import of this is, clearly, that the production of the documents sought by Woodside would be contrary to this usual practice, which preserves the confidentiality of the employees' identities. The citation of the decision in NUW v Lovisa Pty Limited in paragraph [24] would make this pellucidly clear to the fair-minded lay observer, who would therefore not read these paragraphs as indicative of the possibility of prejudgment on the issue of the appropriate method for assessing majority support under s 237(2)(a). It might be added that the fair-minded lay observer would also be taken to be aware, from the directions, that the Deputy President was open to consider submissions in opposition to the petition method, and would read the production decision in this light.
(Footnote omitted).
63 When the Production Decision is read as a whole and in the light of the Directions, it seems to me that any case Woodside may have that the Decision is affected by apprehended bias is, at best, a weak one.
64 The ground relating to the Production Decision is pleaded in the following way:
The effect of the Production Decision was to exclude the Applicant from accessing and inspecting unredacted copies of the petitions and other relevant documents, giving rise to procedural unfairness, as the Applicant was not given an opportunity to see for itself the evidence as given to the Commission, unredacted and unedited, and was consequently not given a fair opportunity to correct or contradict the evidence.
65 No written submissions were directed to this matter.
66 As the AWU submitted, the challenge to the Production Decision involves a challenge to the exercise by the Deputy President of a procedural discretion conferred on the Commission by s 590(1) of the FW Act to "inform itself in relation to any matter before it in such manner as it considers appropriate". The Full Bench denied permission to appeal from the Production Decision, finding that there were insufficient prospects of success. In refusing permission to appeal, a differently constituted Full Bench to that which made the Appeal Recusal Decision observed in the Production Appeal Decision at [26] that Woodside's complaint was premature:
Insofar as Woodside alleges jurisdictional error based on a denial of procedural fairness, that is entirely premature. The Deputy President has not yet made a majority support determination, nor has she taken the prerequisite step of making a finding pursuant to s 237(2)(a) that a majority of employees want to bargain nor even decided upon the method by which the existence or otherwise of majority support may be determined. In these circumstances, it is impossible to say that any denial of procedural fairness has yet occurred or that the decision under appeal has irreversibly prejudiced Woodside's interests in the matter.
67 There is force in these remarks.
68 In oral argument Woodside pointed out that it had informed the Commission in its response to the AWU's application that it would offer "appropriate confidentiality undertakings" in relation to the access and use of the material produced in answer to its foreshadowed application for production of documents. The same point was made to the Full Bench in the appeal from the Production Decision. But no undertakings were evidently proposed, let alone offered. As the Full Bench said in the Production Appeal Decision at [24]:
The order sought would have required disclosure to Woodside of the names of employees who indicated, in what was intended to be a confidential petition process, that they supported bargaining for an enterprise agreement, as well as the disclosure of communications sent to all employees' private email addresses, regardless of whether they had signed a petition. Further, it was unaccompanied by any proposal for a regime to protect employees' confidentiality.
69 In these circumstances the Full Bench did not consider that the Deputy President erred in taking into account and giving weight to privacy considerations. As presently advised, nor do I.
70 Furthermore, I was informed that the only redactions made to the petitions were to conceal from Woodside the names of the individual employees "for the reasons of confidentiality and concern, apprehension at the Commission, being the specialist tribunal in this area, [which] has long recognised that employees may have about sticking their neck out in that way and potentially being disadvantaged in their employment". Having regard to the other measures proposed by the Deputy Commissioner to protect Woodside's interests in the event that the petition method were to be adopted, I find it hard to see what impact this has on Woodside's ability to be heard on any of the relevant issues. As Mr Gibian SC for the AWU explained, what the Deputy President proposed was comparing the names and signatures on the petition to the names on a list of relevant employees (which Woodside was to file with the Commission on a confidential basis) and then satisfy herself that the number of signatures exceeds 50%. If misrepresentations were made to employees in any documents, surely the documents will speak for themselves.