Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch

[2018] FWC 6462

[2018] FWC 6462

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2018/837, RE2018/881, RE2018/885)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 18 OCTOBER 2018

Applications for entry permits for John Tucker, Shaun James Desmond and Matthew Parfitt – application for recusal – apprehension of bias – no recusal.

[1] The Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch (CFMMEU) has applied for entry permits under s.512 of the Fair Work Act 2009 (the FW Act) for John Tucker, Shaun Desmond and Matthew Parfitt.

[2] A mention was held on 27 August 2018, at which the CFMMEU submitted that I should recuse myself from dealing with the applications.

[3] The CFMMEU subsequently filed written submissions in support of its recusal application and a hearing was held on 4 October 2018.

[4] The CFMMEU submitted that I should recuse myself from hearing the application on the basis that I had, on 17 March 2016, ‘re-tweeted’ a ‘tweet’ on Twitter by the then Minister for Employment, Senator Michaelia Cash, which included the following text:

‘Labor gets millions from the CFMEU. That’s why they’re against restoring the ABCC. Bring back the ABCC.’

[5] The tweet also contained an image of Bill Shorten, the Leader of the Opposition, dressed as a cricketer and holding a bat in the air. The following text was superimposed on the image:

‘CFMEU notches up 100 members before courts

A CENTURY of SHAME’

[6] The CFMMEU submitted that:

‘The tweet expressly conveyed a message that was very critical of the CFMMEU. That is, the CFMMEU should be ashamed of its conduct, and the ALP ashamed of its affiliation with the ALP. Further, the tweet carried with it the imputation that because the CFMMEU had members currently involved in legal proceedings (as opposed to having acted unlawfully), it needed to be more closely scrutinised by a new regulatory body’.

[7] The CFMMEU submitted that re-tweeting the Minster’s tweet creates a reasonable apprehension of bias on my part, that is, that a fair-minded lay observer might reasonably apprehend that I might not bring a fair, impartial and independent mind to the determination of these applications for entry permits.

Relevant principles

[8] The Commission has generally adopted the approach to apprehended bias set out by the High Court in Ebner. 1 The majority in that judgement said:

‘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.

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. 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.’ 2 [references omitted]

[9] Also relevant is the statement made by Mason J (as his Honour then was) in Re JRL; Ex parte CJL:

‘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.’ 3

[10] I also consider the following statement made by Dawson J in the same case to be relevant to this matter:

‘But the whole of the circumstances must be considered and such a conclusion must be firmly established and should not be reached lightly. Moreover, the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures.’ 4

Consideration

[11] The ‘re-tweet’ was originally brought to my attention on 27 July 2017, during a mention in relation to matter no. RE2017/793. I was concerned at that time that there may have been grounds for a reasonable apprehension of bias, and so I arranged for the application to be dealt with by another member of the Commission.

[12] However, since 27 July 2017, I have dealt with over 50 matters to which the CFMMEU (or its predecessor, the CFMEU) was a party (not including Full Bench matters where I was not the presiding Member). In none of these matters has there been any suggestion that I have acted other than impartially.

[13] I consider that this is sufficient to eradicate any reasonable apprehension of bias in relation to the applications currently under consideration. Accordingly, I have decided not to recuse myself from dealing with these applications.

[14] The applications will be relisted for directions.

SENIOR DEPUTY PRESIDENT

Appearances:

R Reitano of counsel, with J Kennedy, solicitor, for Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch.

Hearing details:

Sydney.

2018.

October 4.

Printed by authority of the Commonwealth Government Printer

<PR701563>

 1   Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

 2   Ibid [6]-[8].

 3 (1986) 161 CLR 342, 352.

 4   Ibid 371-2.