[2020] FWC 3598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colin McKerlie
v
RateIt Australia Pty Ltd T/A RateIt
(U2020/1211)

DEPUTY PRESIDENT BOYCE

SYDNEY, 15 JULY 2020

Application for recusal or disqualification of decision-maker on the basis of actual or apprehended bias — whether actual bias in decision to grant permission to Respondent to be legally represented — whether actual or apprehended bias based upon errors identified in appeal proceedings concerning other first instance decisions — the importance of ‘context’ when determining the ‘logical connection’ between the alleged source of bias and its supposed effect — submissions and evidentiary material relied upon to support claim of apprehended bias derived from Google searches — evidentiary material relied upon to support claim of apprehended bias protected by Parliamentary privilege (and therefore unable to be received into evidence) — claims of actual or apprehended bias rejected on the basis of no evidentiary or legal foundation — recusal application dismissed — proceedings part heard — matter listed for directions to program the matter to complete hearing.

Overview

[1] On 5 February 2020, the Applicant, Mr Colin Robert McKerlie, lodged an application for an unfair dismissal remedy (Unfair Dismissal Application).

[2] Mr McKerlie alleges that he was “dismissed” on 21 January 2020, by RateIt Australia Pty Ltd (Respondent), and that such dismissal was unfair and contrary to Part 3-2 of the Fair Work Act 2009 (Act).

[3] On 8 May 2020, I conducted a hearing in relation to two jurisdictional objections to the Unfair Dismissal Application (as raised by the Respondent). In brief, that hearing went to whether Mr McKerlie was an independent contractor or an “employee”, and, if an employee of the Respondent, whether his dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act. 1

[4] My decision in McKerlie v RateIt Australia Pty Ltd T/A RateIt (3 July 2020) (Representation Decision) sets out the reasons for my decision to grant the Respondent permission to be legally represented in these proceedings. 2 It also outlines the procedural background to this matter.3 I rely upon, but do not repeat, that procedural background in this decision.

Recusal Application

[5] On 15 May 2020, Mr McKerlie made an application that I recuse or otherwise disqualify myself from further involvement in these proceedings (Recusal Application). As I understand the Recusal Application, Mr McKerlie contends that:

(a) I have exhibited ‘actual bias’ in granting the Respondent permission to be legally represented in these proceedings; and/or

(b) on the basis of Google searches undertaken by Mr McKerlie, a hypothetical fair-minded and informed lay observer would conclude that my conduct has created an ‘apprehension of bias’, such that I am unable to bring an impartial mind to the determination of relevant contested issues in these proceedings.

[6] It is well established that a decision-maker, in respect of whom bias is alleged, is to rule (themselves) upon any recusal or disqualification application. The High Court has described this as “both the ordinary, and the correct, practice” in the first instance. 4

[7] I have determined to reject Mr McKerlie’s Recusal Application on the basis that it is without foundation — both on the evidence before me, and as a matter of law. My reasons for this determination follow.

Events leading up to Recusal Application

[8] On 30 March 2020, Mr McKerlie wrote to my Chambers, as follows:

“I write to request clarification of the issues which are to be the subject of the hearing on 8 May.

The matter was escalated to a hearing without conciliation on my request for consideration of the conduct of the Respondent’s solicitors in the matter.

I can understand that this would translate to a hearing on the Respondent’s request for legal representation but I am unsure of the ambit of the hearing regarding jurisdiction.

Is this hearing intended to be solely in regard to those two issues or is it intended that all issues between the parties are to be determined in this hearing?

I understand that the jurisdictional issue may be determinative, but I am not sure if it is intended to address the substantive issues between the parties if it is decided the Applicant has jurisdiction.

Could you please advise by return, thank you”.

[9] Later that same day, my Associate wrote back to Mr McKerlie, as follows:

“The matter is programmed for a hearing on the jurisdictional objections only. The hearing is not intended to address the “substantive issues” between the parties”.

(emphasis in original)

[10] During the course of the hearing held on 8 May 2020, Mr McKerlie:

(a) made submissions opposing the grant of permission to the Respondent to be legally represented; and

(b) contended that a question of “genuine redundancy” is a not a question of jurisdiction in an unfair dismissal proceeding.

[11] In compliance with my directions dated 6 March 2020, the Respondent filed and served evidence and written submissions going to the jurisdictional objections of whether Mr McKerlie was an independent contractor or employee, and whether his dismissal was a case of genuine redundancy. 5 Mr McKerlie, contrary to my directions made on 6 March 2020, only filed evidence and written submissions going to whether he was an independent contractor or an employee. Mr McKerlie submitted that he had failed to comply with my directions as he was of the view that “genuine redundancy” is not a jurisdictional issue.6

[12] I note that despite my rejection of Mr McKerlie’s assertion that the issue of “genuine redundancy” is not a jurisdictional issue, 7 and despite his failure to file and serve evidence and written submissions going to that issue, I granted Mr McKerlie a 40 minute adjournment to prepare for his cross-examination of the Respondent’s witnesses (concerning their evidence on genuine redundancy).8 In doing so, I rejected Mr McKerlie’s request that the hearing that day be adjourned or vacated.9

[13] At the conclusion of the hearing on 8 May 2020, all of the Respondent’s four witnesses had given evidence in-chief and had been cross-examined. All of the Respondent’s documentary evidence had also been tendered. In other words, the Respondent’s case, in terms of evidence, had closed.

[14] As the matter was part heard, and Mr McKerlie was yet to be cross-examined, I programmed the matter for a further hearing commencing at 2:00pm AEST on Friday, 15 May 2020. The parties advised me that the afternoon of 15 May 2020 would be sufficient to enable Mr McKerlie’s evidence and cross-examination to be finalised. 10

[15] I also granted leave for Mr McKerlie to file and serve further written submissions on the issue of genuine redundancy. 11 I provided this indulgence to Mr McKerlie, despite his non-compliance with my previous directions made on 6 March 2020.

[16] On 12 May 2020, Mr McKerlie sought to file (by email) further written submissions and extensive evidence (regarding the issue of genuine redundancy). My Associate wrote back to the parties (on my behalf), that day, as follows:

“Leave has neither been requested nor granted for the Applicant to tender (or otherwise rely upon) further evidence in these proceedings.

Leave has only been granted to the Applicant for him to make further submissions on the jurisdictional issue of genuine redundancy. I note that he has filed those submissions.

In view of the foregoing, the Deputy President advises that the parties should proceed on the basis of the evidence filed as at the 8 May 2020 (i.e. the time that the Respondent’s evidentiary case in these proceedings closed)”.

[17] The reasons for my refusal to grant leave (for Mr McKerlie to rely upon further evidence) were based upon the fact that:

(a) the Respondent’s Form F3, filed 4 March 2020, identifies that it was raising jurisdictional objections going to both whether Mr McKerlie was an independent contractor or an employee, and in the alternative, whether Mr McKerlie’s dismissal was a case of genuine redundancy; 12

(b) my email to Mr McKerlie on 30 March 2020 was clear and unambiguous as to both of the jurisdictional objections being dealt with at the hearing on 8 May 2020; 13

(c) Mr McKerlie’s failure to comply with the directions made on 6 March 2020 was based upon his erroneous view that the issue of genuine redundancy is not a jurisdictional issue. This ‘view’ was not raised by Mr McKerlie with the Commission prior to the commencement of the hearing on 8 May 2020;

(d) Mr McKerlie should have been well aware that the Respondent would be engaging with both of the jurisdictional objections at the hearing on 8 May 2020 (having regard to the Respondent’s evidence and written submissions filed and served on 25 April 2020, i.e. 13 days before the hearing on 8 May 2020). Assuming Mr McKerlie read such evidence and written submissions at or about the time they were filed and served, he would have been well aware that the hearing on 8 May 2020 was not limited to the independent contractor versus employee jurisdictional objection, but also included the genuine redundancy jurisdictional objection. Any issue or concern held by Mr McKerlie in that regard should have been raised by him with my Chambers prior to the commencement of the hearing on 8 May 2020 (pursuant to my grant of ‘liberty to apply generally’ to both parties, as set out in my directions made 6 March 2020);

(e) having regard to the extensive new evidentiary material that had now been sought to be filed by Mr McKerlie, if tendered into evidence, a further round of evidence from the Respondent would be required, along with likely further cross-examination of the Respondent’s four witnesses;

(f) I was not prepared to permit the timetable of the proceedings to blow-out, with further additional costs to be incurred by the Respondent (in having to review new evidence, draft reply evidence, draft further submissions, and potentially have four witnesses attend a further hearing for cross-examination), only because Mr McKerlie decided that he would not be complying with the 6 March 2020 directions; and

(g) whilst I had already explained these issues to Mr McKerlie at the hearing on 8 May 2020, 14 he still chose to file further evidence regardless (and absent any suggestion that he was applying for leave, or would be applying for leave, to rely upon such further evidence at the hearing). Mr McKerlie may well be an unrepresented litigant, but he is also a former lawyer (of some 18 years’ experience).15

[18] Although it might be said that indulgences to unrepresented applicant litigants are more readily granted, such indulgences must be appropriately weighed against the issue of prejudice to a respondent, based upon proper case management principles, and a consideration of what is “fair and just” at the time (and stage of proceedings) when such an indulgence is sought. 16

[19] Following my ruling denying Mr McKerlie leave to rely upon further evidence, on 13 May 2020, Mr McKerlie emailed a complaint about me to the President of the Commission (Complaint to President) requesting that the matter be immediately transferred to another member of the Commission. Despite this complaint, I retain carriage of the matter, as it remains my duty to deal with it.

[20] On 14 May 2020 (at 12:10pm AEST), Mr McKerlie emailed the Honourable Christian Porter MP, Attorney General, Minister for Industrial Relations, and Leader of the House, copying in various other Members of Parliament, Senators and journalists (Email to Attorney General). That email requested the intervention of the Attorney General in these proceedings.

[21] On 14 May 2020 (at 6.15PM AEST), Mr McKerlie wrote to my Chambers as follows:

“I write to give notice that at the commencement of the hearing currently listed for 2pm tomorrow, Friday, 15 May 2020 I will making the submission that Deputy President should recuse himself from further involvement in the conduct of these proceedings on the basis of the various documents forwarded recently by email and which should be apparent to all the parties.

Should the Deputy President decline to recuse himself on this application I will be seeking an adjournment to allow me to file an appeal against that decision”.

[22] I acceded to Mr McKerlie’s foregoing request that the hearing set down for 15 May 2020 be immediately converted into a hearing on to the question of my recusal, and made directions for the filing and serving of evidence and submissions concerning same. The Respondent did not indicate that it opposed this course.

[23] On 15 May 2020, at 11:00am AEST, Mr McKerlie sent to my Chambers all of the submissions and evidence he intended to rely upon at the hearing of the Recusal Application. Later that same day, I heard the Recusal Application. Mr McKerlie appeared for himself. Mr Marouchak (Solicitor, MKI Legal) continued his appearance for the Respondent. At the end of the hearing on 15 May 2020, I reserved my decision.

[24] Further submissions were subsequently received from Mr McKerlie on 30 June 2020, which I deal with in paragraphs [101] to [103] of this decision.

Mr McKerlie advises that he will be filing an appeal before the Recusal Application is determined

[25] During the recusal hearing on 15 May 2020, in the midst of his submissions, Mr McKerlie stated:

“But I’ll give you notice that I’m appealing those two decisions on Monday, irrespective of whether or not you have prepared written reasons”. 17

Further action taken by Mr McKerlie

[26] On Sunday, 17 May 2020 (at 6:48pm AEST), Mr McKerlie again wrote to the President, but this time in the President’s “capacity as a Justice of the Federal Court [of Australia]”, seeking advice as to the basis upon which Mr McKerlie might obtain relief in the Federal Court from my continuing to hear the matter.

[27] On 25 May 2020, Mr McKerlie filed proceedings in the Federal Court (concerning these proceedings) seeking, inter alia, a writ of prohibition. On 9 June 2020, Mr McKerlie filed further proceedings in the Federal Court (concerning these proceedings). Mr McKerlie later discontinued the proceedings he had previously commenced on 25 May 2020. Given the proceedings filed by Mr McKerlie on 9 June 2020 are currently before the Honourable Justice Snaden of the Federal Court, nothing further need be said.

Appeal filed (on a decision yet to be made)

[28] On 29 May 2020, Mr McKerlie filed an appeal with the Commission in relation to this recusal decision. At that time, I had published no reasons for decision, or otherwise made any written decision, on the issue of my recusal in these proceedings, or otherwise.

Stay of proceedings rejected by Vice President Hatcher

[29] As part of his appeal application, Mr McKerlie sought to have these proceedings (before me) stayed.

[30] Mr McKerlie’s application for a stay was dismissed on transcript by Vice President Hatcher on 1 June 2020, with written reasons published on 2 June 2020 (Stay Decision). 18

[31] As part of the Stay Decision, Vice President Hatcher sought to summarise his understanding of the purported basis of Mr McKerlie’s Recusal Application. 19 However, I consider the Vice President’s summary and understanding to be significantly broader (in terms of issues raised, and arguments advanced) than those actually raised by Mr McKerlie in the Recusal Application before me. I therefore proceed upon the basis (in this decision) of what Mr McKerlie has actually put before me, in terms of issues, evidence and submissions.

Evidence tendered by Mr McKerlie at the recusal hearing

[32] By way of email dated 15 May 2020, Mr McKerlie set out the evidence he would be relying upon at the hearing of the Recusal Application, as follows:

“The Applicant will be reading into the transcript the text of his email complaint to Justice Ross dated 13 May, 2020 and his email complaint to the Commonwealth Attorney General dated 14 May, 2020 - both of which were copied to DP Boyce's Chambers at the time they were sent. The Applicant will further read into the transcript the decision of the Ontario Judicial Council in the Zabel case, which has been submitted previously, and the Members Code of Conduct. Should DP Boyce have any problem understanding any of the terms used in any of those documents, the Applicant will be attending today armed with Osborn's Concise Law Dictionary and will do his best to make the meaning of those terms comprehensible to DP Boyce.

The Applicant tenders into evidence the recording of the prior hearings in this matter before DP Boyce, first the "hearing" on the Applicant's draft Notice to Produce Documents [21 April 2020] and second the hearing that took place last Friday [8 May 2020]. I don't know if those recordings are automatically reduced to text transcripts but if they are, the Applicant requests they be supplied to him as soon as possible.

The Applicant also tenders into evidence every other complaint made against DP Boyce in any other proceedings at this time unknown to the Applicant as those complaints will be sourced and submitted in any appeal that arises from DP Boyce’s failure to recuse himself from these proceedings.

…

The Applicant will take as long as is necessary to present his case”.

[33] At the recusal hearing, the only documents Mr McKerlie tendered were the Complaint to the President, and the Email to the Attorney General. These documents are not evidence. They are bad in form, and comprise submissions based upon allegations arising from opinion, and unsubstantiated hearsay. There is no manner in which such allegations might be tested in these proceedings. The making of allegations that are said to support grounds for recusal must not only be distinctly made, but properly supported by cogent evidence. 20

[34] It is not to the point that the Commission, pursuant to s.591 of the Act, is not bound by the rules of evidence and procedure in relation to a matter before it. In this regard, I adopt and rely upon what the Full Bench of this Commission said in Commonwealth of Australia (represented by the Department of Immigration and Border Protection) v CPSU, the Community and Public Sector Union (CPSU decision): 21

“Section 591 of the Act provides that the Commission is not bound by the rules of evidence and procedure. However, as noted by the Full Bench of the then Australian Industrial Relations Commission in King v Freshmore (Vic) Pty Ltd [Print S4213]:

“[60] We note at the outset that the Commission is not bound by the rules of evidence. In this regard s.110 of the Act relevantly provides ...

[61] But s.110(2)(a) does not mean that the rules of evidence are irrelevant. As the then President of the Industrial Relations Commission of Western Australia said in respect of a similar provisions in the then WA Act:

‘However, this is not a licence to ignore the rules. The rules of evidence provide a method of enquiry formulated to elicit truth and to prevent error. They cannot be set aside in favour of a course of inquiry which necessarily advantages one party and necessarily disadvantages the opposing party (R. v War Pensions Entitlement Appeal Tribunal: ex parte Bott [1933] 50 CLR 228 Evatt J. at 256 (dissenting)). The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful control over a tribunal which is not bound by the rules of evidence.’ (footnotes omitted)”. 22

[35] Notwithstanding the foregoing, taking a practical approach, I have used the emails (tendered by Mr McKerlie) as a basic reference point for Mr McKerlie’s recusal allegations (subject to what I say in paragraphs [90] to [103] of this decision as to the exclusion of evidence, in all Australian courts and tribunals, on the basis of Parliamentary privilege).

[36] I note that Mr McKerlie did not request an adjournment of the recusal hearing on 15 May 2020 so as to obtain and/or tender any further or other evidence to support his Recusal Application.

[37] Although Mr McKerlie sought to tender the transcripts of the hearings on 21 April 2020 and 8 May 2020, he had not ordered, and was thus not in possession of (or able to tender) such transcripts. Post the hearing on 15 May 2020, I instructed my Associate to order such transcripts, so as to attempt to make sense of Mr McKerlie’s allegations. Again, I note that Mr McKerlie never sought an adjournment of the recusal hearing on 15 May 2020 so as to obtain such transcripts (i.e. for the purposes of making submissions directly referable to same).

[38] Within the emails relied upon by Mr McKerlie are links to one media release, and two website media articles (arising from Mr McKerlie’s Google searches). However, the website links to the media articles are behind ‘pay walls’. One clicks on a link to find a demand for a monetary subscription to access content. This is one of the most unconventional manners in which a party has sought to tender a document in a proceeding that I have experienced. However, taking a practical approach, I ended up obtaining copies of the two media articles.

Recusal hearing on 15 May 2020

[39] Prior to making his submissions, I asked Mr McKerlie as to whether he sought to address me on any case law regarding recusal. His response was: “I haven’t had any reliance on any case law”. 23 Having regard to the fact that Mr McKerlie is a former lawyer, his approach is most unhelpful.

[40] These reasons for decision are somewhat lengthy and detailed. This situation arises because Mr McKerlie’s case as to recusal is imprecise, absent reference to law, and thus not altogether easy to understand. I have therefore approached these reasons on the basis that Mr McKerlie concedes nothing on the law as to actual and/or apprehended bias, and that I need to otherwise engage with and resolve all of Mr McKerlie’s unordered strands of argument.

[41] In oral submissions, despite Mr McKerlie being unable to formulate specific propositions for me to resolve (on the question of my recusal), Mr McKerlie does appear to identify three broad issues:

(a) Recusal Issue One (Actual bias: the Representation Decision): According to Mr McKerlie, I displayed actual bias in the Representation Decision because I pre-judged my decision to grant permission to a lawyer to represent the Respondent in these proceedings. In doing so, I also failed to take into account the conduct of the Respondent’s lawyers in their interactions with Mr McKerlie prior to the filing of the Respondent’s Form F3. 24

(b) Recusal Issue Two (Bias (actual or apprehended): Inclination to fall into error): According to Mr McKerlie, 25 I am biased (on an actual and/or apprehended basis) because I am predisposed to making the types of errors identified by the Full Bench of the Commission in Retail and Fast Food Workers Union Incorporated v Hungry Jack’s Australia Pty Ltd t/a Hungry Jack’s,26 and Construction, Forestry, Maritime, Mining and Energy Union and Ors v OS ACPM P/L and Anor27 (collectively, Full Bench Decisions).

(c) Recusal Issue Three (Apprehended bias: Absence of impartial mind): Based upon Google searches of my name, conducted by Mr McKerlie on his home computer, Mr McKerlie has identified media reports about me, the content of which Mr McKerlie considers gives rise to an apprehension of bias, such that I might not bring an impartial mind to the determination of Mr McKerlie’s unfair dismissal claim (including the jurisdictional objections). 28

[42] When I pressed Mr McKerlie at the hearing as to any further matters that he was proposing to rely upon to support his Recusal Application, the following exchange occurred:

“THE DEPUTY PRESIDENT: Right, okay. All right, so next? What's the next issue in these proceedings you say that I'm biased - - -

MR McKerlie: Well, the next issue is the decision - is the - well, I'd like you to go back and listen to the tape of what happened last Friday when - - -

THE DEPUTY PRESIDENT: Well, it's your case, Mr McKerlie, so you've got to particularise what it is that your case is so I can consider it and determine it.

MR McKerlie: Well, the point is I'm a person with - - -

THE DEPUTY PRESIDENT: It can't be a situation - it can't be a situation where you sit here and tell me to go back and read or listen to transcript. If you've got a case put it.

MR McKerlie: Why not? I'm referring you to - this is unbelievable. You do what you like, right, all I'm doing at the moment is racking up appeal points. I've really got no interest in what you think about these things anymore because I think you're - everything about the way you conduct yourself, both as is reported publicly and as I've experienced in this case, are outrageous. I mean bias is so obvious it's embarrassing. I practised as a litigator in four different jurisdictions over 18 years, I have extensively superior legal training to you. I have extensively superior legal experience to you, and I'm telling you any experienced lawyer who listens to the exchange between you and I and Mr Marouchak last Friday will roll their eyes of how blatant the bias is.

I mean you've got a sweet little racket here. You sit in the jurisdiction where 97 per cent of all workers who come before you are unrepresented and you play tag team with people who - like Mr Marouchak who describe themselves as employment lawyers, while you bully unrepresented workers. What you did to me last Friday is an absolutely crystal clear case of that. So you make of it what you will. My concern today is to give you an opportunity to defend yourself in writing for the appeal that is going to follow. What I was going to start asking you before you cut me off is as we sit here now, have you already decided whether or not you're going to recuse yourself?

THE DEPUTY PRESIDENT: Mr McKerlie, the purpose of the hearing is to hear you out so I can then make a decision.

MR McKerlie: Okay, so you haven't made a decision. That's what you're saying.

THE DEPUTY PRESIDENT: You're getting way ahead of yourself. What I now know is you've put [on] a bias [claim] or you're alleging that I should recuse myself on the basis of bias and I need the specifics so I can consider that and - - -

MR McKerlie: Okay, well, I'm telling you that it's - - -

THE DEPUTY PRESIDENT: It's no good you sitting here telling me your racking up appeal points when you can't articulate the case that you're putting to me on this particular application.

MR McKerlie: Well, what I'm saying is evidence of the bias that you have demonstrated in this case is the entirety of the exchange between you and I before - last Friday, before we got into actual consideration of the evidence. I say everything that was done and said in that exchange is clear evidence of your bias against an unrepresented worker.

THE DEPUTY PRESIDENT: That's the submission you make as a - what did you say, a solicitor with 18 years’ experience?

MR McKerlie: Yes”. 29

[43] Mr McKerlie’s recusal case is highly dependent upon him specifically isolating the relevant conduct that I am said to have engaged in, and/or the actual matters that he says give rise to an apprehension of bias, so that he can then move to properly identify how a logical connection with that conduct or matter demonstrates that I have not, or might not, bring an impartial mind to these proceedings. 30 The foregoing transcript exchange highlights Mr McKerlie’s inability and/or unwillingness to do so. As will be seen later in my reasons, ultimately Mr McKerlie offers no proper articulation or sound basis upon which he alleges actual or apprehended bias in these proceedings (as a matter of fact, or law).

Respondent’s submissions on recusal

[44] In oral submissions, at the Recusal Hearing on 15 May 2020, Mr Marouchak, of MKI Legal (on behalf of the Respondent) made the following points (in summary):

(a) the Recusal Application is not supported on the evidence or the law, indeed, it does not have a shred of merit to it; and

(b) Mr McKerlie has made statements about the presiding member’s ability to hold office. Neither Mr McKerlie, nor anyone else for that matter, has any ability to remove a member of the Commission from office, or otherwise question their tenure. It follows that the opinion of Mr McKerlie (or others) about such matters are irrelevant, including for the purposes of these proceedings. 31

Other matters abandoned or not pressed by Mr McKerlie on the issue of bias and/or recusal

[45] Whilst significant time during the hearing on 8 May 2020 was taken up with Mr McKerlie’s assertions as to the issue of “genuine redundancy” not being a jurisdictional issue, Mr McKerlie decided not to address the matter as part of his Recusal Application. In this regard, Mr McKerlie stated:

“MR McKerlie: Yes. Just with regard to that, Deputy President, I have done more research and you're certainly correct, that the Bench book and all the other documentation and some case law that I've read generated by current members of the Commission seem to treat the genuine redundancy issue as one of jurisdiction and it's all wrong. That's my submission, but that's not really the concern of this hearing”. 32

(my emphasis)

[46] I note that Mr McKerlie has tendered into evidence the transcript of the hearing conducted on 21 April 2020. That hearing concerned an application by Mr McKerlie seeking orders as to the production of documents from the Respondent (Production of Documents Application). However, during the hearing on 15 May 2020, Mr McKerlie made no reference to the Production of Documents Application. Given Mr McKerlie voluntarily withdrew the Production of Documents Application on 21 April 2020, 33 I work on the basis (in this decision) that Mr McKerlie does not agitate any issue(s) of bias in relation to same.

[47] Finally, in passing, I also note that Mr McKerlie sought to rely upon “every other complaint made against DP Boyce in any other proceedings at this time unknown to the Applicant”. 34 I am not aware of any such complaints against me in any other arbitral proceedings before this Commission. That said, even if there were any such complaints, Mr McKerlie has not tendered into evidence any such complaints, nor has he articulated the basis upon which any such complaints might give rise to an allegation of bias on my part in these proceedings. Nothing further need be said on this issue of “other complaints”.

[48] It is appropriate to point out that in an application to recuse a decision-maker for bias, there is no basis upon which disclosure (e.g. discovery, subpoena or notice to produce) can be sought from a decision-maker, and there is no basis upon which cross-examination of a decision-maker is to occur. 35 Recusal proceedings are not to be conducted as a voir dire of a decision-maker.36

Mr McKerlie closes his case on recusal

[49] At the conclusion of the recusal hearing on 15 May 2020, Mr McKerlie confirmed that he had tendered all of the evidence he sought to rely upon, and had said everything he wished to say, in support of his Recusal Application:

“THE DEPUTY PRESIDENT: So just confirming, you've said everything you wish to say in relation to the - into this case of recusal that you've put and you rely on the other documents that you've already filed by way of email to my Chambers in this matter, and that's everything you rely on.

MR McKerlie: Yes, Deputy President”. 37

Relevant legal principles — actual bias

[50] A decision-maker must not sit on a case where he or she is biased against one of the parties. 38 A finding of actual bias is a grave matter.39 Such a finding must not be made lightly, and may only be made on the basis of cogent evidence.40 It follows that a party asserting a case of actual bias carries a heavy onus. The allegation should be made distinctly, and be clearly proven.41

[51] A finding as to actual bias is based upon ‘prejudgement’ incapable of being altered by evidence or argument, i.e. not ‘predisposition’. To be disqualified for actual bias it must be established (in the definite sense) that a decision-maker is so committed to a particular outcome, that he or she will not alter that outcome, regardless of evidence or argument presented. 42 This requires an assessment of the state of mind of the decision-maker.43

Rejection of Recusal Issue One (Actual bias: the Representation Decision)

[52] If Mr McKerlie is dissatisfied with my decision to grant permission for the Respondent to be legally represented in these proceedings, he may appeal my decision. However, the fact that a litigant is dissatisfied with a decision is not a basis to bring an application for recusal on the ground of actual bias. 44 Further, the fact that a decision-maker has committed appealable error is not a basis to bring an application for recusal on the ground of actual bias.45

[53] Mr McKerlie’s claims as to bias in respect of Recusal Issue One appear to be based upon his own beliefs as to actual bias (i.e. not the facts, not the evidence, and certainly not the law). Based upon the words recorded on transcript (being the basis upon which Mr McKerlie moved his claim as to actual bias on 15 May 2020), I do not accept that I pre-judged my decision to grant the Respondent permission to be legally represented in these proceedings. 46 Nor do I accept that I failed to take into account Mr McKerlie’s allegations as to his interactions with the Respondent’s lawyers prior to the hearing.47 I therefore find that there is no basis to Mr McKerlie’s allegations that I was so committed to a particular outcome (in favour of the Respondent), that I would not alter my determination in respect of that outcome no matter what evidence or submissions were put before me.48 I reject Recusal Issue One as a basis upon which I am required at law to recuse myself from these proceedings.

Relevant legal principles — apprehended bias

[54] Just like actual bias, apprehended bias is directed to ‘prejudgement’ incapable of being altered by evidence or argument. In other words, the tests as to actual and/or apprehended bias are not directed towards a ‘predisposition’. 49

[55] In pointing out that “natural justice does not require the absence of any predisposition or inclination”, 50 Chief Justice Gleeson and Justice Gummow of the High Court, made the point that:

“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”. 51

[56] In Michael Wilson & Partners Ltd v Nicholls, 52 the majority of the High Court stated:

“So too, in this case, the bare assertion that the judge appeared to be biased through prejudgement would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgement and the possibility of departure from impartial decision making”. 53

[57] In Ebner v Official Trustee in Bankruptcy (Ebner), 54 the majority of the High Court stated:

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle

…

… First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed”. 55

[58] When referring to the “test” to be applied based upon the foregoing passage from Ebner, two members of the High Court (Justice Gageler and Justice Hayne) have separately (in two different cases) identified the application of a three-step approach:

“The first is that it is an "objective test of possibility, as distinct from probability". The second is that its application necessarily involves three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way”. 56

“Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case”. 57

[59] Dr Matthew Groves, 58 of the Monash University Law Faculty, makes the following observations of the test in Ebner:

“One practical obstacle of this test is the requirement that those claiming bias must explain the ‘logical connection’ between the suggested source of bias and its supposed effect. A party claiming bias cannot simply point to an alleged source of bias and presume that its effect is so obvious it can be inferred without any real explanation. A claim that does not clearly explain why a source of alleged bias may have the supposed effect is likely to be rejected as a ‘bare assertion’ of an interest. This second step of the Ebner test requires rigour because the courts have stressed that a claim of bias must be ‘firmly established’. It is not enough that the facts raised in support of the claim create ‘a vague sense of unease or disquiet’ in the fair-minded and informed observer whose judgment is used to determine bias claims”. 59

(citations omitted)

[60] Further to the foregoing, in Hot Holdings Pty Ltd v Creasy, 60 Chief Justice Gleeson, stated:

“… it is not sufficient to address the issue, at a high level of generality, by reference to ethical standards of public servants. … Nor is it sufficient to characterise the "process" as "tainted", and note that an observer who knew some of the facts, but not others, might be suspicious about what had gone on. What is required is an identification, and application, of the principle upon which the challenge to the Minister's decision must rest”. 61

[61] The Hon. Michael Kirby AC CMG, who expressed a dissenting decision in Ebner, has publicly lamented the transformation in Ebner away from an assessment of “independence” as a stand-alone test for bias. 62 Following Ebner, the test under Australian law (across the board) is now that of “impartiality” (with the requirement for a ‘logical connection’ to be identified before any finding as to impartiality can be made). In short, it is not good enough to simply assert that an absence of independence (or bias) exists, for example, due to a financial interest, a statement made, or an association with a particular group or person. Indeed, simply because it might be asserted that a decision-maker lacks independence (real or apprehended), does not mean that they are impartial, or will otherwise be impartial. To suggest otherwise would be to totally misunderstand and misapply Ebner (and thus misunderstand and misapply the law of recusal in Australia as set down by the High Court).

[62] It is equally important to note that the test as to apprehended bias depends upon whether there is a “real”, rather than a “remote”, albeit “possibility” (not probability) of bias. 63

[63] A party applying for a decision-maker to recuse himself or herself must be able to identify a “logical connection” between the alleged apprehension of bias, and the impartiality. Bare assertions are not sufficient. 64 Asserted apprehensions of bias must be reasonable. The test is taken from the perspective of a hypothetical fair-minded and informed lay observer, and is not concerned with fanciful apprehensions of bias.65 The subjective views of a party are not relevant.66

[64] A party must positively satisfy the decision-maker that the test for apprehended bias is established. A hypothetical fair-minded and informed lay observer does not rely upon inaccurate or incomplete information. 67 A decision-maker should not disqualify himself or herself without good cause, and must not reach that conclusion lightly.68

[65] The case of Helow v Home Secretary (Helow) 69 identifies that there is a significant difference between a decision-maker ‘appearing’ to endorse a person or a group, and ‘actually’ endorsing a person or group. Further complicating matters for the purposes of making any finding as to apprehended bias, is the fact that one may associate themselves with a person or group, but not agree with or endorse ‘all’ of the views of that person or group. In other words, simply because one may associate themselves with a person or group is not enough. There needs to be cogent evidence as to what the specific views of that person or group are said to have been ‘actually’ endorsed by a decision-maker. An inference as to some form of ‘at large’ endorsement of a person or group, is essentially irrelevant to a question of apprehension of bias at law, in that such an inference is incapable of making a ‘logical connection’ with any alleged impartiality, and would certainly be almost impossible to then make a finding that such a flimsy assertion as to impartiality is capable of giving rise to “prejudgement”. One might ask rhetorically, if a decision-maker chooses to actively associate themselves with a person or group, to whom the decision-maker has no ‘actual’ connection, how does one make a ‘logical connection’ giving rise to a finding as to impartiality (and apprehended bias)?

[66] I do not consider there to be any basis upon which the case of Helow is distinguishable, to the extent that it has no utility, or ought not be directly applied, under Australian law. This is especially so where the test for apprehended bias under English law is stricter (i.e. more easily satisfied) than the test set down in Ebner (under Australian law). 70

[67] In Locabail (UK) Ltd v Bayfield Properties Ltd (Locabail), 71 the English Court of Appeal noted that claims of bias will not “ordinarily” succeed if based upon “extra-curricular utterances” (whether in textbooks, lectures, speeches, articles, or interviews), albeit such a presumption may be rebutted.

[68] It is further to be remembered that this Recusal Application is brought before a specialist Tribunal. One of the qualifications for appointment is the requirement for relevant experience in the field of industrial relations. Members of the Commission will almost invariably have had a close association with employers or employee associations. All of this was considered by the High Court in Re Polites; ex parte Hoyts Corporation Pty Ltd, 72 where the High Court issued a writ of mandamus requiring Senior Deputy President Polites to hear a matter, he having recused himself from the matter when it became apparent that he had provided advice to a party to the litigation which had some relevance to the matter to be determined.73

Rejection of Recusal Issue Two (Bias (Actual or Apprehended): Inclination to fall into error)

[69] According to Mr McKerlie, I am predisposed to making the types of errors identified in the Full Bench Decisions (Predisposition). It is not clear to me whether Mr McKerlie relies upon the Predisposition to advance a claim of actual or apprehended bias.

[70] In the overall sense, Mr McKerlie submits that it follows from the Predisposition that I am biased, including because there is an alleged tendency for me to make the same or similar errors in this decision. I must say that I am not aware of any legal basis to Mr McKerlie’s allegations on this ground of bias (actual or apprehended). And even if there be any legal basis to this ground of bias, it is not supported by any evidence, or an available inference that would give rise to a logical connection between the proposition advanced by Mr McKerlie, and the finding of bias that he asserts ought to be made.

[71] In relation to actual bias, the issue that Mr McKerlie asserts gives rise to his claim of bias vis-à-vis the Predisposition, cannot be said to be an issue upon which one could make a finding that I am so committed to a particular outcome, that I will not alter that outcome.

[72] In Re JRL; Ex parte CJL, 74 Justice Mason of the High Court pointed out that in matters where a litigant seeks to allege that a previous decision of a decision-maker gives rise to an apprehension of bias, the relevant previous decision/s needs to provide an acceptable basis for inferring that there is a reasonable apprehension that the decision-maker will approach the issues in the same way:

“ … It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

The present case must be determined against this background of general principle and policy”. 75

[73] Both of the Full Bench decisions referred to by Mr McKerlie concern applications for the approval of single enterprise agreements. Both of those decisions concern the identification of ‘orthodox error’ (i.e. unextraordinary error(s) committed by other members of the Commission). 76

[74] In terms of the law, and the facts, neither of the Full Bench decisions referred to by Mr McKerlie give rise to legal questions currently before me (i.e. in an unfair dismissal application). Further, neither of the Full Bench decisions concern any facts arising in these proceedings, or involve the same parties to these proceedings. Mr McKerlie has not submitted otherwise, nor has he referred to any evidence or exchange on transcript at the hearing on 8 May 2020 to support any foundation to his allegations on this ground of purported bias.

[75] Mr McKerlie founds his allegations as to bias in respect of Recusal Issue Two upon statements made (outside Parliament) by the Hon. Tony Burke MP, Federal Shadow Minister for Industrial Relations, as reported by the media. 77 Such statements are unexceptional having regard to frequency with which the Commission, and its various Members, are subject to public political comment on a regular basis. Given that the content of Mr Burke’s statements are no more than political comment, they are opinion, and thus irrelevant.

[76] Recusal Issue Two is equally not supported on the law as to actual or apprehended bias. In this regard, in ALA15 v Minister for Immigration and Border Protection, 78 the Full Court of the Federal Court held that evidence of conduct or determinations in past decisions, or tendencies said to arise from same, are not matters in respect of which a fair-minded and informed lay observer might believe that a decision-maker might not bring a fair, impartial, and independent mind to the determination of a particular matter on its merits.79

[77] Recusal Issue Two is not arguable, let alone reasonably arguable. For the reasons set out in this decision, I reject Recusal Issue Two in relation to both actual and/or apprehended bias. Recusal Issue Two is not a basis upon which I am required at law to recuse myself from these proceedings.

The importance of ‘context’ to the hypothetical fair-minded and informed lay observer

[78] I observe that the relevant parts of Mr McKerlie’s Complaints to the President, and the Email to the Attorney General, including the media articles cited therein, concern reports of matters raised before the Senate Estimates Education and Employment Committee on 4 March 2020 (Senate Estimates Committee).

[79] Case law on the question of apprehended bias is replete with statements as to the importance of focusing very (very) close attention to “context”, 80 which is highly fact, and degree, sensitive.81 This is consistent with the test for apprehended bias being an objective one.82 In other words, the focus as to the “setting” in which particular issues as to bias are said to have arisen is perhaps the most important matter to consider when one turns to assess “the ‘logical connection’ between the suggested source of bias, and its supposed effect”83 as to impartiality or prejudgement.

[80] This issue of ‘context’ envelopes into the nature of the hypothetical person named the “fair-minded and informed lay observer”. In Helow, Lord Hope of Craighead made the following observations about the hypothetical fair-minded and informed lay observer:

“The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively.

…

Then there is the attribute that the observer is “informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment”. 84

(my emphasis)

[81] It is equally important to note that relevant ‘context’ may be provided by the decision-maker himself or herself in recusal proceedings (i.e. as part of his/her decision on a recusal application). This would include, for example, setting out context arising from the decision-maker’s own knowledge of particular facts or events (Locabail Principle). 85

[82] In view of the Locabail Principle, I am content to concede (in these proceedings, for the purposes of ‘context’, and the personification of the hypothetical fair-minded and informed lay observer), that there have been some impertinent observations made about appointments to the Commission by some Opposition Members and Senators. In my case, such disaffected Opposition Senators have taken the opportunity in a Senate Estimates Committee hearing to reflect on what is alleged to have been my conduct. Of course, criticism of appointments to courts, tribunals and other statutory bodies is not uncommon, and is predictably defended on the basis of “public discussion”, or the holding of a government to account. Whilst a Senate Estimates Committee is undoubtedly a forum pursuant to which topics or matters are raised for the purposes of “public discussion”, such matters or topics may be raised for good reasons, or for bad or ulterior reasons. It is a matter of opinion as to which of these categories apply, and reasonable minds may differ (with no one opinion more relevant or important than another – which is exactly the point of public discussion, and the freedoms that derive from the “ancient origins” of Parliamentary privilege). 86

[83] But the foregoing cannot detract from the fact that, at law, the hypothetical fair-minded and informed lay observer puts whatever he or she has read or seen into its overall “context” (including its political context). 87 In my view, the hypothetical fair-minded and informed lay observer, in taking a balanced approach to any information he or she is given, and in taking the trouble to inform himself or herself on all matters that are relevant, would have regard to the political context of ‘criticisms over appointments’ (i.e. when he or she is determining the basis of any connection between asserted issues of bias, and the question of, or logical connection with, impartiality). As Lord Hope of Craighead has stated, the hypothetical fair-minded and informed law observer appreciates that “context” forms an important part of the material which he or she must consider before passing judgment.88

[84] The difficulty from Mr McKerlie’s perspective in relying upon the material that he does (apart from him failing to identify exactly what it is that he relies upon within such material), is that none of the material is in a form capable of receipt into evidence. For example, unsubstantiated hearsay, unsourced allegations, answers to leading (and pregnant) questions, and opinion, do not become admissible evidence simply because they arise under the cloak of Parliamentary privilege. Further, as I point out below, when something is said in Parliament, it prevents reliance upon it in Commission or court proceedings due to the application of Parliamentary privilege. But in any event, on a purely hypothetical basis, even if such evidence in this case were to be accepted, I am unable to fathom (at law) how any of it could be said to lead to the possibility that I might prejudge Mr McKerlie’s unfair dismissal application in any particular way.

[85] Mr McKerlie apparently relies upon two photographs which are said to be of my office Chambers. Having examined these photographs for the purposes of determining their admissibility, I see that one photograph depicts two fictitious anime comic book superhero statuettes, and another photograph depicts a life-sized cardboard cut-out of United States President Donald J. Trump. Both photographs appear to have been taken by a “non-law enforcement optical surveillance device” (likely a mobile telephone camera). I did not authorise these photographs to be taken, nor was I aware that they had been taken until shortly after the Senate Estimates Committee hearing on 4 March 2020. Further, I did not authorise these (unauthorised) photographs to be distributed to other persons.

[86] Mr McKerlie has not explained the evidentiary providence of these two photographs. For example, Mr McKerlie has not identified:

(a) who took these photographs;

(b) when these photographs were taken;

(d) how these photographs were distributed; and/or

(e) when these photographs were distributed.

[87] My own knowledge, in terms of answering the foregoing questions by reference to the Locabail Principle, is of no assistance in that I equally do not hold knowledge so as to answer these questions. Anything I might say would be pure speculation. Whilst the temptation is strong to draw inferences and/or engage in such speculation, it would be not only inappropriate, but unlawful for me to do so. 89

[88] It seems that Mr McKerlie relies upon the fact that the photographs were referred to or produced in the Senate Estimates Committee hearing as establishing their veracity. But again, this proposition faces the insurmountable obstacle of Parliamentary privilege. 90

[89] Mr McKerlie has not addressed the circumstances of the said photographs, so it might also be assumed that their very existence is what is relied upon, rather than I had some particular purpose or reason for what they identify as being in my office Chambers. But again, relying upon the truth of their existence, or otherwise drawing an inference as to the purpose or “appropriateness” (whatever that term might be asserted to mean) of the photographs, my conduct, and/or the reasons for the existence of these photographs, is prohibited by s.16 of the Parliamentary Privileges Act 1987 (PP Act). And in any event, due to Parliamentary privilege, I am unable to deduce (in this decision) the manner in which a hypothetical fair-minded and informed lay observer might assert that I might prejudge Mr McKerlie’s unfair dismissal application merely by the existence or presence of such photographs (or the depictions therein).

The exclusion of evidence of truth, and/or inferences to be drawn from evidence, due to absolute Parliamentary privilege

[90] The forum of the Australian Parliament is absolute and exclusive. Parliamentary privilege is an aspect of the law that Australian courts and tribunals are not only required to administer, but ‘must’ administer. It is for Parliament alone to determine the width of its jurisdiction in respect of Parliamentary privilege. 91

[91] Section 16 of the PP Act reads:

“16. Parliamentary privilege in court proceedings

(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, “proceedings in Parliament” means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

(a) the giving of evidence before a House or a committee, and evidence so given;

(b) the presentation or submission of a document to a House or a committee;

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

(4) A court or tribunal shall not—

(a) require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or

(b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence,

unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.

(5) In relation to proceedings in a court or tribunal so far as they relate to—

(a) a question arising under section 57 of the Constitution; or

(b) the interpretation of an Act,

neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee or the making of statements, submissions or comments based on that record.

(6) In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates.

(7) Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act”.

[92] Section 16 of the PP Act was considered by the Full Bench of this Commission in the CPSU decision. 92 I agree with the analysis and approach set out in the CPSU decision, and follow it in this decision.

[93] The Senate Estimates Committee is a “proceeding in Parliament” as defined by s.16(2) of the PP Act. It follows that evidence of all words spoken and acts done in the course of, or for purposes of or incidental to, the Senate Estimates Committee, including evidence such as submissions, correspondence, media articles (whether tendered to identify words spoken, acts done or otherwise), statements and other documents, are protected by absolute Parliamentary privilege in Commission and court proceedings. As Blackstone’s Commentaries on the Laws of England (Blackstone) 93 states:

“… whatever matter arises concerning either House of Parliament, it ought to be examined, discussed, and adjudged in that House to which it relates and not elsewhere”. 94

[94] Indeed, any words spoken, acts done or documentary evidence tendered, including answers to questions (with or without notice), before the Senate Estimates Committee are inadmissible (and therefore irrelevant) before the Commission (including in these or other recusal proceedings), or a court. This is especially so where such statements or evidence are to be used for any of the broad purposes set out in s.16(3) of the PP Act, including, for example, relying upon such statements or evidence for the purpose of their “truth”, or for the purposes of “drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings [in this case, proceedings before the Senate Estimates Committee]”. In other words, the Commission, or a court, however constituted, has absolutely no discretion in this regard (per s.16 of the PP Act), and the absolute privilege applies whether or not any party to a proceeding actually makes an objection. 95

[95] Section 16 of the PP Act also extends to media reports of Senate Estimates Committee proceedings. In Amann Aviation v Commonwealth of Australia, 96 Justice Beaumont, after rejecting the admission of evidence of a question put and an answer made in the Senate (on the basis that its receipt into evidence before the court would be contrary to s.16 of the PP Act, and unlawful), said the following in relation to a media report on the same Senate proceedings:

“In my opinion, the tender of this [media report] should be rejected for two reasons. First, its reception would infringe the provisions of s.16(3) for the reasons given in dealing with the tender of the extract from Hansard, that is to say, the purpose of the tender is just as much a proscribed [prohibited] purpose as the tender of Hansard itself. The tender is thus made unlawful by virtue of s.16(3). Secondly, in any event, the [media report] is in bad form, being hearsay only”. 97

[96] The fact that a matter is public knowledge, for example, via a media report, but was not previously covered by Parliamentary privilege, will subsequently gain the protection of Parliamentary privilege (including in Commission or court proceedings) upon it becoming part of, or tendered during, a “proceeding in Parliament”.

[97] Given the very wide scope and application of s.16 of the PP Act, it follows that the more documents that are tendered before the Senate Estimates Committee, and/or the more facts or issues that are discussed or otherwise raised or answered before the Senate Estimates Committee (e.g. for the so-called ‘purpose’ of “public discussion”), the broader the basis upon which any such matters will be excluded for the purposes of evidence or submissions before the Commission or the courts. Even if construed narrowly, the words of s.16 of the PP Act are broad. But there is no basis to construe them narrowly, and in the wider sense, the words become even more clear as to their scope and application.

[98] In the CPSU decision, the Full Bench acknowledged the impact of s.16 of the PP Act, and stated:

“Finally, we acknowledge that our decision has particular implications for the material which DIBP seeks to rely upon. However, in that regard we note the following comment by White J in Carrington:

“The Respondents acknowledged that the privilege may produce consequences which are regarded as unfair in court proceedings. So much has been recognised in a number of the authorities: Prebble at 336G; Rann v Olsen at [125], [190]. The responsibility for addressing such circumstances … lie[s] with the Parliament itself: Halden v Marks at 463; Crane v Gething [2000] 97 FCR 9 at [49]”. 98

[99] The unfairness referred to by Justice White appears to be directed towards a party who seeks to rely upon evidence caught by s.16 of the PP Act to, for example, prove the truth of a matter, or have an inference drawn from such evidence. However, questions of unfairness are inevitably a two-way street. In other words, if evidence caught by Parliamentary privilege could be tendered as to the truth of a matter, or could otherwise be used to ask a decision-maker to draw inferences, it would be highly prejudicial. In this regard, such evidence might be based upon partisan political opinion, unhinged outrage, and/or unsubstantiated hearsay. Any person referred to during the course of proceedings in Parliament is unable to defend themselves against, or otherwise clarify by way of reply, matters going to untruth, falsehood and/or misrepresentation. Indeed, such evidence has not been obtained, or brought into the forum of “public discussion”, pursuant to any tenants of natural justice or procedural fairness. In many cases, such evidence would be excluded anyway because it is unfairly prejudicial, or has otherwise been obtained improperly or pursuant to an impropriety (e.g. obtained on an unauthorised basis, absent a person’s knowledge). 99

[100] In applying s.16 of the PP Act to Mr McKerlie’s allegations in this matter (as contained in his Complaints to the President, his Email to the Attorney General, and the media release and media articles cited therein), I consider their content, or the relevant (and substantial) part of their content, to be unlawful for me to receive into these proceedings as evidence. This is a finding that I am not only bound to make in these proceedings, but in any other proceedings concerning such matters. It is so given that the only purpose of such evidence would be for the purposes of attempting to establish the truth of a matter, or to make submissions inviting the drawing of inferences and/or conclusions wholly or partly from such evidence. The admission of such evidence might also give rise to it being partly or wholly impeached, and/or stripped bare of all credibility. All of this is strictly prohibited by s.16 of the PP Act.

[101] Section 16 of the PP Act (and its application to the material sought to be relied upon by Mr McKerlie in these proceedings) was not raised at the recusal hearing on 15 May 2020. On 25 June 2020, my Associate emailed the parties and provided them with the opportunity to make any written submissions they wished to make on s.16 of the PP Act by 30 June 2020. 100 MKI Legal (on behalf of the Respondent) advised on 25 June 2020 that the Respondent did not wish to make any submissions.

[102] Mr McKerlie made the following points in his written submissions (relevantly):

(a) Mr McKerlie is only aware of what has been reported in the news media;

(b) the photographs relied upon by Mr McKerlie have been publicly made available pursuant to a freedom of information request, and are therefore wholly within the public domain (and admissible as evidence on that basis);

(c) Section 16 of the PP Act does not apply in a case where a decision-maker is considering the implications of facts known to him through his or her personal experience. Parliamentary proceedings are irrelevant to such facts (as known to the decision-maker);

(d) whilst proceedings in Parliament cannot be relied upon in Commission or court proceedings, they can trigger an alternative process concerning facts obtained externally to the Parliamentary proceedings, that can then be tendered before the Commission or a court;

(e) Mr McKerlie is entitled to rely upon the public statements made by the Hon. Tony Burke MP outside of Parliament (which are not caught by Parliamentary privilege); and

(f) Mr McKerlie has made no attempt to put the proceedings of Parliament before the Commission because he “understands the law”. 101

[103] In relation to the foregoing submissions of Mr McKerlie:

(a) it is correct that, depending upon the circumstances, evidence (for example, a media release, a photograph or a media report) in the public domain, tendered in proceedings before Parliament, may also be tendered before the Commission or a court. However, that is not to the point. Where such evidence, or submissions about same, concern or relate to the giving of evidence, or evidence so given, before a proceeding in Parliament (including, without any limitation as to generality, words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee), the issue becomes one of ‘purpose’ (by reference to s.16(3) of the PP Act);

(b) in these proceedings, all of the evidence (Complaint to President, Email to the Attorney General, photographs, media releases and media reports) sought to be tendered by Mr McKerlie are connected with, are incidental to, or directly relate to words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of the Senate Estimates Committee on 4 March 2020 (apart from media report concerning the Full Bench decisions). There is no other source from which this information directly or indirectly arises. Indeed, Mr McKerlie does not point to the providence of such material being otherwise;

(c) Mr McKerlie’s submission that he can overcome s.16 of the PP Act because he has made no attempt to put any proceedings of Parliament before the Commission, is disingenuous, and/or a misunderstanding of the law. The purpose to which Mr McKerlie seeks to rely upon such evidence, and/or make submissions about same (as to truth or inferences), is “unlawful”; 102

(d) further, even though such evidence might be said to be able to be tendered on a notional basis (for example, to prove the occurrence of an objective event), given that it cannot be relied upon for the purposes to which Mr McKerlie seeks to rely upon it, the evidence is irrelevant in that it holds no probative value in these proceedings (i.e. if Mr McKerlie can tender photographs, media releases, or media reports, but cannot then make any lawful submissions about them, they become irrelevant, and their tender is therefore pointless). One simply cannot use evidence falling within the scope of s.16 of the PP Act so as to advance any submissions going to truth, knowledge, belief, conduct, inference and/or conclusion. In R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc, 103 Lord Justice Dunn stated:

“In my judgment there is no distinction between using a report in Hansard for the purposes of supporting a cause of action arising out of something which occurred outside the House, and using a report for the purpose of supporting a ground for relief in proceedings for judicial review in respect of something which occurred outside the House. In both cases the court would have to do more than take note of the fact that a certain statement was made in the House on a certain date. It would have to consider the statement or statements with a view to determining what was the true meaning of them, and what were the proper inferences to be drawn from them. This, in my judgement, would be contrary to art 9 of the Bill of Rights [s.16 of the PP Act]. It would be doing what Blackstone said was not to be done, namely to examine, discuss and adjudge on a matter which was being considered in Parliament. Moreover, it would be an invasion by the court of the right of every member of Parliament to free speech in the House with the possible adverse effects referred to by Brown J”. 104

(e) exactly the same situation arises in relation to facts known to a decision-maker through his or her personal experience, i.e. where such facts are to be relied upon for a purpose contrary to s.16(3) of the PP Act. This is even putting aside the fact that a recusal hearing is not a voir dire of a decision-maker; and

(f) whatever statements have been made, or have been otherwise published by the Hon. Tony Burke MP (or the media), outside of Parliament, are also caught by s.16(3) of the PP Act given that they arise from words spoken and acts done in the course of, or for the purposes of, or incidental to, the transacting of the business of the Senate Estimates Committee. Of course, I exclude (from this) the statements of political opinion made by Mr Burke (outside of Parliament) concerning the Full Bench decisions (that I have already dismissed as irrelevant). 105

Rejection of Recusal Issue Three (Apprehended bias: Absence of impartial mind)

[104] At the hearing on 15 May 2020, the following exchange between Mr McKerlie and myself occurred:

“THE DEPUTY PRESIDENT: It's correct, isn't it, that all this - all of your submissions and reference to matters in this case concern a Google search that you've conducted. Is that right?

MR McKERLIE: Yes. Well, that's where it - that's what gave rise to it”. 106

[105] My own view is that if one’s case as to recusal is merely based upon a Google search, it is not a case to begin with. Indeed, without the underlying source material to such Google search results, in the form of admissible evidence, a case based upon the results of a Google search is nothing more than a case based upon inadmissible, inaccurate, incomplete and unreliable hearsay and opinion. It is not to the point (at all) that such information is in the public domain — this does not in any way alter the need for admissible evidence. This is especially so where such information is shielded from lawful admission in Commission or court proceedings (under the cover of absolute Parliamentary privilege). A hypothetical fair-minded lay observer does not rely upon inaccurate or incomplete information. 107

[106] On the issue of asserted ‘apprehended bias’ in these proceedings, the following points are pertinent:

(a) Firstly, the application of s.16 of the PP Act means that there are no submissions or evidence before me in these proceedings giving rise to a basis upon which apprehended bias can be said to be found, inferred, or even be arguable.

(b) Secondly, even if that be wrong, in whole or in part, given the “[political] context” of the manner in which the matters concerning me were raised before the Senate Estimates Committee (see paragraphs [82] to [89] of this decision), such context would be known to the hypothetical fair-minded and informed lay observer. Having regard to that context, there is no rational basis for concluding that the hypothetical fair-minded and informed lay observer, acting reasonably, could apprehend (or infer) some form of relevant disposition as to prejudgement on my part in these proceedings (i.e. leading to a finding that there is a “real” possibility that I would prejudge the issues in these proceedings otherwise than on their merits).

(i) Step One – Mr McKerlie has failed to identify, on the evidence or otherwise, the factors as to bias that he says might cause a hypothetical fair-minded and informed lay observer to consider any issue in these proceedings to be resolved other than on their merits.

(ii) Step Two – Significantly, Mr McKerlie has failed to demonstrate, as distinct from asserting, how any factors as to bias are ‘logically connected’ to any issues for determination in these proceedings.

(iii) Step Three – Assuming contrary to Steps Two and Three, even if the hypothetical fair-minded and informed lay observer might apprehend some form of relevant factor as to bias going to ‘prejudgment’, Mr McKerlie has failed to establish that such hypothetical fair-minded and informed lay observer might reasonably conclude that I am unable to deal with or resolve the issues for determination in these proceedings other than on their merits.

[107] Recusal Issue Three is not reasonably arguable. It is not supported by the facts, or the law. For the reasons set out in this decision, I reject Recusal Issue Three as a basis upon which I am required to recuse myself from these proceedings.

Member Code of Conduct

[108] At the hearing on 15 May 2020, Mr McKerlie tendered the Fair Work Commission’s Member Code of Conduct. However, he said nothing further about it.

[109] The Member Code of Conduct concerns Subdivision B, Division 2 of Part 5-1 of the Act, and the functions and powers of the President. It follows that any issue in relation to the Member Code of Conduct is not a matter that is capable of being before me for determination. Nothing further need be said.

Removal from office

[110] Members of the Commission are appointed until the age of 65, or resign. 109 A Member’s appointment may be terminated if a prayer [request for relief] calling for same is presented to the Governor-General by “each House of the Parliament in the same session”.110 It follows that Mr McKerlie’s suggestion that I be removed from office is not a matter that is capable of being before me for determination. Nothing further need be said.

Conclusion

[111] As stated in my reasons above, I have rejected Mr McKerlie’s Recusal Application on the basis of actual bias during the hearing, and on the basis of apprehended bias more generally. On the evidence, and in the context of the allegations that have been made, there is simply no basis at law to Mr McKerlie’s contentions on the question of my recusal.

[112] These proceedings are unusual, in the sense that they concern a special set of facts that are not commonly encountered. In this regard, Mr McKerlie currently has an appeal on foot in respect of this recusal decision before a Full Bench of the Commission (filed before this decision has been published), as well as an application before the Federal Court (relating to these proceedings).

[113] The prejudice to the Respondent arising from the delay (and costs) that the Recusal Application has already caused, and the further prejudice (and delay and costs) to be visited upon the Respondent because of the manner in which Mr McKerlie is choosing to conduct himself, is not a basis (at law) upon which I am able to recuse myself. Indeed, I am especially conscious of the need to insist upon the proper application of the law in relation to recusal in this case, as any departure from principle invites the unworthy advocate to simply insult or otherwise engage in conduct that seeks to encourage a Commission Member to recuse themselves. 111 Further, the fact that a party might choose to appeal each and every interlocutory decision made during a hearing is not a basis upon which a decision-maker is able to recuse themselves.

[114] The foregoing is especially so in this matter, where the Respondent’s evidentiary case has closed, and it has been agreed between the parties that the completion of the remainder of the hearing on the jurisdictional objections will take only a further two hours. 112

[115] In the formal sense, I dismiss Mr McKerlie’s Recusal Application. An order to that effect, along with a Notice of Listing setting the matter down for directions (including the programming of a final hearing date) will be issued separately to this decision.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for himself.

Mr Nicholas Marouchak (Solicitor, MKI Legal) appeared with permission on behalf of the Respondent.

Hearing details:

The hearing on the Applicant’s recusal application was heard in Sydney (by telephone) on 15 May 2020.

Final Submissions:

The Applicant’s Outline of submissions and Evidence were filed on 15 May 2020, with his Final written submissions filed 30 June 2020.

Printed by authority of the Commonwealth Government Printer

1 McKerlie v RateIt Australia Pty Ltd T/A RateIt[2020] FWC 2616, at [4].

2 [2020] FWC 2616.

3 Ibid, at [5]-[13].

4 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [74].

5 Filed by the Respondent on 25 April 2020.

6 Transcript, 8 May 2020, PN129 to PN135, PN171, PN202, PN212 to PN218.

7 See ss. 385(d) and 396(d) of the Fair Work Act 2009.

8 Transcript, 8 May 2020, PN274 to PN276.

9 Transcript, 8 May 2020, PN203, PN219 to PN229; PN269 to PN271.

10 Transcript, 8 May 2020, PN1024 to PN1033.

11 Transcript, 8 May 2020, PN270.

12 Respondent’s Form F3, filed 4 March 2020, at Item 2.2.

13 See paragraph [9] of this decision.

14 Transcript, 8 May 2020, PN120 to PN252.

15 McKerlie v RateIt Australia Pty Ltd T/A RateIt[2020] FWC 2616, at [34].

16 Fair Work Act 2009, ss.577(a) and 590; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, at [95], [102]-[106].

17 Transcript, 15 May 2020, PN1119.

18 [2020] FWC 2878.

19 Ibid, at [9].

20 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, at [97].

21 [2017] FWCFB 4200.

22 Ibid, at [52].

23 Transcript, 15 May 2020, PN1081.

24 A Form F3 is an “Employer Response to an Unfair Dismissal Remedy”. The Respondent filed and served its Form F3 on 4 March 2020. See also Transcript, 15 May 2020, PN1097 to PN1100; PN1116 to PN1117; PN1122 to PN 1123.

25 Complaint to President.

26 [2020] FWCFB 1693.

27 [2020] FWCFB 2434.

28 Transcript, 15 May 2020, PN1168 to PN1171.

29 Transcript, 15 May 2020, at PN1124 to PN1138.

30 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at 344, [6] to [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

31 Transcript, 15 May 2020, PN1073 to PN1079.

32 Transcript, 15 May 2020, PN1196 and PN1199. The foregoing was said by Mr McKerlie, notwithstanding ss. 385(d), 391(1)(b), and 396(d) of the Act.

33 Transcript, 21 April 2020, PN52 to PN54.

34 See paragraph [32] of this decision.

35 Locabailv Bayfield Properties [2000] QB 451, at [19]; Makucha v Sydney Water Corporation [2011] NSWCA 234, at [9]; Helow v Home Secretary [2008] 1 WLR 2416, at 2426, [39].

36 Mark Aronson and Matthew Groves, “Judicial Review of Administrative Action”, 5th Edition, 2013, Lawbook Co. p.621.

37 Transcript, 15 May 2020, PN1202 to PN1203.

38 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507.

39 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, at 127.

40 South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16, at [97].

41 Ibid.

42 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507.

43 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, at [33].

44 Ibid, at [67].

45 Ibid.

46 Transcript, 8 May 2020, PN98 to PN121.

47 Ibid.

48 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507.

49 Ibid, at 531-532, [71]-[72], per Gleeson CJ and Gummow J.

50 Ibid, at 531. [71].

51 Ibid, at 532, [72]

52 (2011) 244 CLR 427.

53 Ibid, at [63].

54 (2000) 205 CLR 337.

55 Ibid, at 344 to 345, [6] to [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

56 Isbester v Knox City Council (2015) 255 CLR 135, per Gageler, at [59].

57 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507, per Hayne J, at 564, [185].

58 BA LLB (Hons), PhD, Senior Lecturer, Faculty of Law, Monash University, Australia. Dr Groves is currently the Professor of Public Law at the Law School of La Trobe University.

59 Dr Matthew Groves, Public Statements by Judges and the Bias Rule (2014), Monash University Law Review, Vol 40, No 1, 2014: 115-147, at 120.

60 (2002) 210 CLR 438.

61 Ibid, at 447.

62 Hon. Michael Kirby AC CMG, Judicial Recusal: Differentiating Judicial Impartiality and Judicial Independence, British Journal of American Legal Studies, Volume 4, Spring 2015, pp.1-18.

63 Young v Judge Nixon [2008] VSCA 5; Gascor v Ellicott [1997] 1 VR 332; Hodgson v County Court of Victoria [2004] VSC 501; Webb & Hay v R (1994) 181 CLR 41; [1994] HCA 30; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; AJH Layers v Careri (2011) 34 VR 236, [20].

64 Young v Judge Nixon [2008] VSCA 5; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; AJH Layers v Careri (2011) 34 VR 236, [22].

65 Gascor v Ellicott [1997] 1 VR 332.

66 R v Nicholas (2000) 1 VR 356; [2000] VSCA 49; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Frugtniet v DPP, Unreported, VSC, 15 April 1996.

67 Honda Australia Motorcycle v Johnstone [2005] VSC 387; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Victoria v Psaila [1999] VSCA 193.

68 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Honda Australia Motorcycle v Johnstone [2005] VSC 387; Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39.

69 [2008] 1 WLR 2416.

70 See for example, Porter v Magill [2002] 2 AC 357 (House of Lords).

71 [2000] QB 451, at 480, at [25].

72 (1991) 173 CLR 78.

73 In passing, I note that Mr McKerlie has sought to rely upon a Canadian decision of the Ontario Judicial Council, concerning disciplinary (not recusal) proceedings under Canadian legislation (Courts of Justice Act RSO 1990 (SC)), against a Judge of the Ontario Court of Justice. The case has no relevance to these proceedings, on the facts, or the law (especially as it concerns judicial disciplinary proceedings, and not recusal proceedings). It is to be noted that Canadian law on the issue of ‘recusal’ (or disqualification) for apprehended bias is almost identical to English Law (and thus very similar to Australian Law) (see, for example, R v S (RD) [1997] 3 SCR 484 (quoted with approval in Helow v Home Secretary [2008] 1 WLR 2416, at 2435, [57]).

74 (1986) 161 CLR 342.

75 Ibid, at [5] to [6].

76 See, for example, Australian Nursing and Midwifery Federation v Armest Pty Ltd T/A Miles Witt Partnership; Australian Workers' Union, The; The Good Shepherd Limited as Trustee for the Good Shepherd Nursing Homes Charitable Trust[2020] FWCFB 2045 (Appeal against decision of Deputy President Asbury), at [22]-[25].

77 Complaint to President; Mr McKerlie’s email to the President, 17 May 2020 (6.48PM AEST).

78 [2016] FCAFC 30.

79 Ibid, at [38] to [46].

80 See, for example, Johnson v Johnson (2000) 201 CLR 488, per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ at [13], and per Kirby J at [53]; British American Tobacco (2011) 242 CLR 283, per French CJ at[47]-[48], and per Heydon, Kiefel and Bell JJ at [144]; Isbester v Knox City Council [2015] HCA 20, per Kiefel, Bell, Keane and Nettle JJ at [23], per Gageler J at [57].

81 Akers v Kirkland [2019] EWHC 2176 (citing in Locabailv Bayfield Properties [2000] QB 451).

82 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, at [76].

83 Public Statements by Judges and the Bias Rule (2014), Groves M, Monash University Law Review, Vol 40, No 1, 2014: 115-147, at 120.

84 [2008] 1 WLR 2416, at 2418, [2] to [3].

85 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, at [64].

86 See Blackstone’s Commentaries on the Laws of England, 17th Ed, (1830), Vol 1.

87 Helow v Home Secretary [2008] 1 WLR 2416, at 2418, per Lord Hope of Craighead at [2]-[3].

88 Ibid.

89 See paragraphs [90] to [103] of this decision.

90 Ibid.

91 Note s.10 of the Evidence Act 1995 (Cth).

92 [2017] FWCFB 4200.

93 17th Ed, (1830), Vol 1.

94 Ibid, at 163.

95 Amann Aviation v Commonwealth of Australia (1988) 19 FCR 223.

96 (1988) 19 FCR 223.

97 Ibid, at 232 to 233.

98 [2017] FWCFB 4200, at [85].

99 Under s.138 of the Evidence Act 1995, evidence may be excluded from proceedings because it has been obtained “improperly” or “in consequence of an impropriety”. The term “improper” is not to be construed narrowly, and is to be given its ordinary meaning. Improper conduct need not be illegal or unlawful conduct, and extends to evidence obtained “abnormally” or “irregularly” (see Director of Public Prosecutions v Carr [2002] NSWSC 194, at [34]); Parker v Controller-General of Customs (2009) ALJR 494, per French CJ at [28]).

100 Email from the Chambers of Deputy President Boyce to Mr McKerlie and MKI Legal dated 25 June 2020.

101 Mr McKerlie’s email submissions dated 30 June 2020.

102 Parliamentary Privileges Act 1987, s.16(3).

103 [1983] 2 All ER 233.

104 Ibid, at 239.

105 See paragraph [75] of this decision.

106 Transcript, 15 May 2020, PN1168 to PN1170.

107 Honda Australia Motorcycle v Johnstone [2005] VSC 387; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Victoria v Psaila [1999] VSCA 193.

108 See paragraphs [57] to [59] of this decision.

109 Fair Work Act 2009, s.629.

110 Fair Work Act 2009, s.641.

111 Re JRL; Ex parte CJL (1986) 161 CLR 342, at [5]-[6], per Mason J.

112 Transcript, 8 May 2020, PN1024 to PN1033.

Colin McKerlie v RateIt Australia Pty Ltd T/A RateIt