Bird, G.J. v Volker, D

[1994] FCA 839

839 J 9y-

JUDGMENT NO. .....r....w.n. rrm m e n

C A T C H W O R D S

DISQUALIFICATION - b~as.

Students Assistance Act 1973

Re F~nance	Section Union of Austral~a	ex Darte Elation P9 Ltd (1992) 66 ALJR 583.
GeofErev

v Derek Volker. The Honourable Slmon Crean and the Honourable Ross Free

QG132 of 1994

Kiefel J: -e:  20 October. 1994

IN THE FEDERAL COURT OF AUSTRALIA	)	No. OG132 of 1994
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1
BETWEEN: GEOFFREY JAMES BIRD

Avulicant

A?LW:  DEREK VOLKER

First Resoondent

AND:  THE HONOURABLE SIMON CREAN

Second Resoondent

m:  THE HONOURABLE ROSS FREE

soondent

MINUTES OF ORDERS

Kiefel J

: -

20 October, 1994

.

-

WHERE:  Brisbane

J'HE COURT ORDERS THAT: 

1.	The application be d~sm~ssed.
m:	Settlement and entry of orders is dealt wth m Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  1 No. OG132 of 1994

9	1
GENERAL DIVISION	1

BETWEEN:

ADDbant

m:  PEREK VOLKER

First Res~ondent

Am2 THE HONOURABLE SIMON CREAN

Second Res~ondent

AWL& m E HONOURABLE ROSS FREE

Third m

m:	Kiefel J
J&l'm	20 October, 1994
W	Brisbane
MI Bird has asked that I dlsquallfy myself from heamg this matter as

he does and, m Ius submission, other members of the publ~c might, apprehend that I

would be b~ased in dealing with the issues arlslng in the apphcatlon. Mr Bird is said to appear for a group, the Australian Un~on of Students. He contends that a student eligible to recerve payments under the Students Assistance Act 1973 should be able to elect to jorn a partlclpating student unlon uslng a payroll deduction form and that such a form should be presented to students llstlng the relevant unions and offering a student wshlng to joln them a cholce as between them. It 1s also suggested the

deduction system could be utlllsed for payments to other organisations, such as health

Issues.

Orders are then sought agalnst Mr Volker, who is Secretary of the

Department of Employment, Education and Traming, to have this system put in place.

Two ministers said to be responsible for that department or for the administrabon of

the act are named m the application and have also appeared today by counsel. I know none of the persons named and I have no familiarity with the union of students

referred to or the department named.

h41 Bird's bases for my d~squalification may, I think, be sumrnansed as:

(a)	that he apprehends that as I am a woman and a lawyer I fall within a class of persons who all hold the bel~ef that decisions ought to be
determmed on a polit~cal and not a legal basis;

(b)	that the federal government or the Attorney-General can be seen to recognise this m their appomtment of me. In this respect h41 Bird holds concerns about the timing of a press release announcing my impending appomtment to this court whlch he says was made only a few days &er
h ~ s application was made;

that I might also hold mews opposed to those of persons of Anglo-Saxon background whlch interence, Mr B~rd says, arlses slnce he belleves I may

be Jewish.

Mr Blrd did not suggest that there were other more specific bases, for

example, that I had been known in the past to be a member of a particular group, or to have made statements to a part~cular effect, or that anyth~ng was to be gleaned from any of my previous declslons glven m the Supreme Court. The fact that Mr Bird

asserts a potential for bias does not require me to disqualify myself and as the High Court restated in Re_Fmance Sector Un~on of Australia ex oarte Elation Ptv Ltd

(1W) 66 AUR 583: "Caution must be exercked by the coum in relation to these

applications".

In some cases these applications may amount to no more than exercises
to secure a hearing by a judge of a party's cho~ct. In addltion to the question as to

how justice is to be done between opposing parties, at a practical level, a system of

Finance Sector Union Case at 583, is that:	choosing judges 1s obviously unworkable. The principle to be appl~ed m these appl~cations, as confirmed in the	"A judge or person obliged to act judicially . . should not sit to hear a
matter if; in all the circumrtances, a parry or the public might enteflain a reasonable apprehenswn that she or he might not bring an impartial or unprejudiced mind to the resolution of the question or questions in it".
Given the question outlined above wh~ch is concerned wlth whether the

department ought to provlde th~s facillty in the manner suggested, I do not thlnk a

member of the publlc would reasonably apprehend that the socio-political conslderatlons Mr Bird is concerned about would ever enter into the decision malang process. Further, if they were relevant, members of the public are, I consider,

unlikely to ascribe the particular points of mew to the persons Mr Bird has referred to. The fact that Mr Bird says that he harbours these mews is, as I have said, not conclusive of the question. The overr~dlng requuement is that the stated

apprehension be one whlch can be seen to be reasonably basic. I do not cons~der h ~ s

are. I am not aware of any matter whlch would affect my determination of the

questions raised and I decline to disqualify myself. I do not propose to grant any stay

of these proceedmgs whch is, I mfer, the order sought by Mr Bird when he referred

to leave for appeal. I will proceed to determine the matter.

I c e d j that this and the preceding three (3) pages are a true mpy of the reasons for judgment herein of the Honourable Justice KiefeL

Date:  20 October, 1994

i-!l"' !z.&bJ-

Associate:

Counsel fa the applicant: In person

Solicitors for the applicant:	In person
Counsel for the respondents:	Mr D Pestorius
Solicitors for the respondents:	Austra l ian  Government
Solicitor
Date of Heariug:	U) October, 1994