Gaisford, Alastair John v Hunt, Christopher Terence
[1996] FCA 887
•11 OCTOBER 1996
CATCHWORDS
ADMINISTRATIVE LAW - natural justice - bias - Inquiry under statute - statement to newspaper reporter - whether creates reasonable apprehension of bias - relevance of subsequent communications to proposed witness concerning media comments - application dismissed.
Public Service Act 1922 s 19 and s 89A
Kelson v Forward (1995) 60 FCR 39
Annetts v McCann (1990) 170 CLR 596
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Mahon v Air New Zealand [1984] AC 808
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 107 ALR 581
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Reg v Watson, ex parte Armstrong (1976) 136 CLR 248
Webb v R (1993-94) 181 CLR 41
Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310
Richmond River Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1992) 106 ALR 671
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Vakuatu v Kelly (1989) 167 CLR 568
Winter v Australian Securities Commission (1995) 56 FCR 107
Re J.R.L.; ex parte C.J.L. (1986) 161 CLR 342
No ACT G59 of 1996
ALASTAIR JOHN GAISFORD v CHRISTOPHER TERENCE HUNT and
THE COMMONWEALTH OF AUSTRALIA
Mansfield J
Adelaide (heard in Canberra)
11 October 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY ) No ACT G59 of 1996
)
DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN:
ALASTAIR JOHN GAISFORD
Applicant
- and -
CHRISTOPHER TERENCE HUNT
First Respondent
- and -
THE COMMONWEALTH OF
AUSTRALIA
Second Respondent
MINUTES OF ORDER
CORAM: Mansfield J
PLACE: Adelaide (heard in Canberra)
DATE: 11 October 1996
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the respondents' costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY ) No ACT G59 of 1996
)
DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN:
ALASTAIR JOHN GAISFORD
Applicant
- and -
CHRISTOPHER TERENCE HUNT
First Respondent
- and -
THE COMMONWEALTH OF
AUSTRALIA
Second Respondent
REASONS FOR JUDGMENT
CORAM: Mansfield J
PLACE: Adelaide (heard in Canberra)
DATE: 11 October 1996
On 30 May 1996 in Parliament, the Minister for Foreign Affairs and Trade announced an Inquiry ("the Inquiry") into matters relating to allegations of paedophile activities by officers and former officers of the Department of Foreign Affairs and Trade ("the Department"). It is not necessary to refer to the detailed statement of the Minister made in Parliament at the time.
The Inquiry has been set up under the provisions of the Public Service Act 1922. The Terms of Reference of the Paedophile
Inquiry (as it was labelled) are as follows:
"1.To consider the manner in which allegations of paedophile activities by officers and former officers of the Department of Foreign Affairs and Trade (including AusAID) and Austrade have been dealt with and, in particular, to determine:
a.Whether they have previously been brought to the attention of the Department, AusAID or Austrade by any means;
b.What actions were taken by the Department, AusAID or Austrade in response to the allegations and whether they were appropriate in terms of the Public Service Act, the Australian Trade Commission Act, departmental or agency instructions and guidelines or the criminal law;
c.Whether appropriate mechanisms and procedures are and were in place to provide officers of the Department, AusAID or Austrade with an avenue to inform management confidentially of possible inappropriate or criminal activity by fellow officers and to allow those allegations to be properly investigated;
d.Whether administrative decisions have been taken and aid or DAP funds committed or disbursed to facilitate or result in paedophile activities, and whether sufficient and appropriate mechanisms are in place for the scrutiny and accountability of the disbursement of aid funds, including the Direct Aid Program (DAP), previously named the Head of Mission Discretionary Aid Fund (HOMDAF), to ensure that opportunities to use such funds for paedophile activities do not arise;
e.Whether there has been any basis to claims that the Department, AusAID or Austrade have sought to cover up paedophile behaviour.
To examine any other issue which appears to bear directly on the handling of allegations of paedophile activities, even if it does not fall strictly into the above terms, if Mr Hunt judges it to be of sufficient seriousness and relevant to this inquiry.
To recommend an appropriate and practicable code of conduct beyond that applying to public servants in general to apply to all staff representing the Australian Government in other countries.
To recommend whether and, if so, what additional mechanisms and procedures are required to allow officers of the Department, AusAID and Austrade to inform management of possible inappropriate or criminal activity by fellow officers, taking account of any Government proposals for service-wide procedures of this kind.
To refer all allegations of paedophile activities to the Australian Federal Police."
The Terms of Reference also specified terms for the conduct of the Inquiry, including that its conduct must accord with the principles of natural justice. It was specifically directed that the Inquiry should be conducted in private. The report of the Inquiry is required to be presented to the Public Service Commissioner and to the Managing Director of Austrade by 1 November 1996.
On the same occasion, the Minister announced the appointment of the first respondent as the person to conduct the Inquiry.
In the conduct of the Inquiry, the first respondent on 21 June 1996 issued a media statement, and statements to staff of the Department, to spell out the arrangements put in place to enable information to be provided to the Inquiry, and on 22 June 1996 caused public advertisements on those matters to be made. Those materials invited contact with the Inquiry from those wishing to report any matter, to give evidence, or to provide information or documentation to the Inquiry to inform the Secretary to the Inquiry by 5 July 1996, and for submissions to the Inquiry to be made by 19 July 1996.
Amongst the material then published by the Inquiry was a general information document providing general information for those contemplating making a submission to the Inquiry and others, largely in the format of questions and answers, and including the following:
"4.Will the rules of natural justice apply?
The Inquiry will afford natural justice to all parties who may be affected by its report. The procedures it adopts will provide appropriate protection for those who wish to bring matters forward in good faith and for those who may be the subject of express or implied criticism. In particular:
.the Inquirer will not make a recommendation, finding or report which is critical of a person or agency unless he has afforded the person or the agency an opportunity to respond to the criticism either in writing or by evidence to the Inquiry;
.to allow persons who are the subject of criticism to respond, the Inquirer may need to use the substance of what is contained in submissions and evidence for the purpose of obtaining evidence or comment from those persons and other witnesses. In doing so, every reasonable effort will be made to protect the source and identity of the original submission, where the person who made that submission so wishes."
That document also assured persons proposing to give evidence to the Inquiry that they were entitled to be legally represented when giving evidence, and indicated that at the end of the Inquiry there would be a public report although subject to the possibility that it might be necessary to present some material in a confidential annexure.
The Inquiry was to be conducted under the Public Service Act 1922, and in particular with the substantial powers under s19 of that Act available to the first respondent, and the protections proffered by s89A of that Act.
In response to that material, apparently a significant number of submissions was received and the first respondent commenced the interviewing of witnesses in private pursuant to his task.
The applicant is an officer of the Department, currently and since 1 March 1996 suspended from duty and suspended from access to all security classifications of national security and sensitive classified information held by the Department. He has brought separate proceedings in this Court challenging those decisions to so suspend him. It is both unnecessary and inappropriate to ventilate the issues arising in that proceeding, except to the extent of noting that information which the applicant proposes to supply to the Inquiry relevant to its Terms of Reference may be relevant also in that separate proceeding. In this matter the Court is not sufficiently informed to know whether or not that will prove to be the case.
One of the sources of information relevant to the Inquiry, identified by it, was the applicant. The first respondent sought information from him, through his solicitor, by letter of 16 July 1996. It is, at least by inference, clear that the applicant is regarded by the Inquiry, and is himself of the view, that he can give significant evidence to it. Communications took place with a view to him giving evidence, and ultimately it was proposed that he should do so on 2 September 1996, shortly before the first respondent was to visit Thailand with a view to interviewing further sources of information and conducting further inquiries there.
His evidence did not then take place in circumstances set out below.
Another person identified as a potential witness to the Inquiry was Shane Joseph Carroll, who had been summonsed to give evidence by arrangement on 29 August 1996. He is a deponent in these proceedings. His evidence was given on that date. The only other deponent in these proceedings who may give evidence to the Inquiry is Angela Hanbury-Sparrow, who had also been approached by the Inquiry to give evidence to it. She has not yet done so although she has sent a number of written submissions to the Inquiry. It is unclear whether the Inquiry will in fact seek evidence from her. She is still listed as a potential witness to the Inquiry.
It should be pointed out that each of the applicant, Mr Carroll and Ms Hanbury-Sparrow are persons whose evidence or potential evidence relates to the conduct of others who may be the subject of considerations by the Inquiry; there is nothing before the Court in this matter to suggest in any way that the conduct of any of them is itself the subject of direct investigation.
Mr Carroll gave his evidence in circumstances to which I shall shortly refer, and subsequently on 12 September 1996, by arrangement with the Inquiry, and at a time when the circumstances giving rise to this application were known to him, attended the office of the Inquiry to inspect the transcript of his evidence, and at that time indicated that he may be able to contribute further information/evidence to the Inquiry.
The first respondent apparently decided that some publicity for his Inquiry might be appropriate to stimulate any further information or submissions to the Inquiry, after his initial statements and advertising. Consequently, a discussion took place between the first respondent and one Ian McPhedran of The Canberra Times which led to an article being published in The Canberra Times on 28 August 1996. That article was in the following terms:
"DFAT not a nest of child sex: inquiry
By IAN McPHEDRAN, Foreign Affairs Reporter
A $1 million government inquiry into paedophile activity in the Department of Foreign Affairs and Trade had so far uncovered loose language and a possible homophobic vendetta rather than a "nest" of paedophiles.
According to sources close to the inquiry, it has not found any startling new and unexpected revelations about paedophile activity in DFAT. The evidence to date also dispels allegations of a "gay mafia" within DFAT.
The inquiry was established by Foreign Minister Alexander Downer in May to seek out whether allegations of paedophilia were investigated, ignored or suppressed and whether the reputation of government agencies was put above the national interest.
One source said evidence to date had revealed considerable "looseness of language" around paedophile activity.
"There is a need to tighten up terminology and to take account of the difference between a seven-year-old and a 15-year-old who is actually 20 because Asian males look young.
"Some people have made a quantum leap from a white male DFAT officer with an Asian male partner, who was young when the relationship started, to paedophile activity. Whether it is deliberate homophobia or a bona fide quantum leap, it is not justified," the source said.
Former governor-general and Labor foreign minister Bill Hayden has been contacted by officials of the inquiry, although it is unclear whether or not he will be called to appear before the inquiry.
The source said some "interesting lines of inquiry" were being explored, and that some lessons would be learned by "everybody" about how the issue had been handled.
With just over two months of its five-months to run the inquiry, being conducted by former Deputy Commonwealth Ombudsman Chris Hunt, has received about 30 written submissions, including an extensive document from the department, and it will summon about 30 witnesses. To date no-one has refused to give evidence to test Mr Hunt's powers of compulsion.
Hearings of the inquiry will conclude by the end of September and Mr Hunt is expected to present his report to Public Service Commissioner Peter Shergold and Mr Downer by earlier November."
It was on the following day that Mr Carroll was to give evidence before the Inquiry. He attended with his solicitor on that date, and before the formal session of the Inquiry started, a discussion took place in the hearing room between his solicitor, Mr Carroll, and the first respondent in which the solicitor said words to the following effect:
"I take it you are going to say something for the record about yesterday's article in The Canberra Times. It is of concern to us as it rather suggests that the Inquiry has formed a view".
The first respondent indicated that he would make such a statement on the record before asking Mr Carroll any questions. He did so and that portion of the record is before the Court. He said:
"Before we move into the formal proceedings, and as I have discussed with both you [referring to Mr Carroll] and your legal representative Mr Della [sic], there is a matter I wish to address arising out of a report in the Canberra Times yesterday. Having given that report some thought, I have decided that it is inappropriate and probably counterproductive for me to enter into any media debate about that article, notwithstanding the fact that I have some very strong concerns about its content. Notwithstanding that I will not be entering into any public debate, I do want to take the opportunity, in this first formal hearing subsequent to the article, to allay any concerns that you or other witnesses may have.
First and foremost, I want to put on record my absolute and unequivocal assurance, to anyone who needs to be aware of it, that I have reached no conclusions whatsoever on any aspect of my terms of reference. Insofar as the article purports to imply otherwise - if indeed it does - then it is simply wrong. In particular, I would wish to place on record the fact that in no sense whatsoever would I regard persons coming before this inquiry bona fide with evidence of relevance to me as being motivated in any way by homophobia or, as the newspaper chose to describe it, "a homophobic vendetta". I find the use of that sort of connotation or motivation as to people coming before this inquiry as quite repugnant. As far as I am concerned, any evidence I receive, from any source, indicating either the existence or cover up of paedophile activity will be vigorously pursued by me."
That statement, although on the formal record of the Inquiry, was not made public, as it could not be because the Inquiry was to be conducted in private. It was however made in the
presence of Mr Carroll and his solicitor, and is noteworthy for that reason in the light of Mr Carroll's evidence to the Court.
The first respondent did not then indicate that he had in fact spoken to the reporter from The Canberra Times, or discuss in any way the content of any such discussion.
The first respondent had also been contacted by a solicitor for the applicant on 28 August 1996, when that solicitor expressed concerns to him about apparent leaks to the press from the Inquiry as contained in the article. He had responded that he "... was not responsible for the contents of the article, but there have been briefings ..." with the journalist. Having considered the matter further, later that day the first respondent contacted the solicitor for the applicant in the following terms:
"I've had another look at the article, and I agree that it could raise concern to your client. I am against writing to The Canberra Times because it won't do any good. I'm going to drop you a note, because I am concerned about Mr Gaisford's reaction. The letter will reassure you."
On the same day, he wrote to that solicitor expressing strong concerns as to the content of the article, and an anxiety to allay any concerns of the applicant. Accordingly, he offered his "absolute and unequivocal assurance" that he had reached no conclusion on any aspects on the terms of reference, and asserted that insofar as the article might convey any other impression, it was wrong. He also asserted that any evidence from any source either the existence or cover up of relevant paedophile activity would be vigorously pursued by him.
On 2 September 1996 the applicant attended to give evidence. He was then represented by counsel. The Court has the benefit of the relevant transcript taken at the time. Counsel for the applicant raised concerns again about the article, and sought information as to whether the Inquiry was aware of the source of the information apparently provided to The Canberra Times. He was told that the Inquiry's contacts with the media had been restricted by a very firm policy that the only information to be provided was broad procedural or administrative information, and that neither the first respondent nor any member of his staff would speak directly on the record with the media. The first respondent indicated that he had spoken to Mr McPhedran, and that a member of his staff had also spoken to Mr McPhedran, both apparently shortly prior to the article appearing and added:
"To my knowledge, the only matters he was given that he was able to present in any sense on the record were procedural matters."
The first respondent then referred to the letter mentioned above, and to the formal making of similar comments on the record on the first occasion the Inquiry had taken evidence following the publication of the article (that is the comments made when Mr Carroll and his solicitor were present). There was then discussion between counsel and the first respondent as to what information had been conveyed to Mr McPhedran. That discussion included the following comments by the first respondent:
"... I was shocked and concerned when I saw the article, it in no sense bore any relevance to the discussion I had with Mr McPhedran which was as to almost its entire content was simply a run through by me of the process we had been following, the stage we had got through and where we were now going. Now, to the extent that that article implies otherwise, it is wrong. To the extent that it suggests I may have made up my mind on any issues whatsoever, that is wrong. To the extent that it implies that people who wish to make allegations are in some way part of a homophonic [sic] plot, it is wild fantasy.
. . .
Mr McPhedran, of course has his own sources, he is also - possibly puts his own spin on things which are said quite out of context. The great bulk of the article and in particular some of the references to things like homophobia I do not believe bore any relationship whatsoever to any discussion I had with him and even if I had made any observations about the general context within which the inquiry's procedures were proceeding, they would not have been in a way that was able to be quoted the way they were."
Counsel for the applicant then applied to the first respondent to disqualify himself on the grounds of reasonable apprehension of bias. In response to that application, the first respondent indicated that, subject to further consideration, he was strongly of the view that there was no bias or any apprehension of bias that should cause him to disqualify himself. In the course of further discussion, he added:
"Well, insofar as the article may be accurate, let us be clear there are a number of points in the article where I have no reason to believe that the secretary gave any of this information and I certainly did not."
The matter was then adjourned.
Later that day a telephone conversation took place between the first respondent and the solicitor for the applicant, and the counsel for the applicant. The first respondent was urged to take "... the opportunity ..." then offered to him to put the Inquiry's account on the record. In the course of that discussion, the first respondent added the following information:
"Mr McPhedran rang David McGill [the secretary to the Inquiry]. David quite deliberately came and told me. We discussed it then I then chose to return Mr McPhedran's call. It seemed to me that we had reached the point where I felt "a little bit of publicity in the local rag might move things along a bit". We appeared to have reached the point of no return for incoming evidence. It was carefully thought out, it reflects the way I chose to conduct my inquiries.
. . .
None of the quotes came from the Inquiry, so I don't see any point in being cross-examined on transcript as you seek."
Counsel for the applicant continued to urge the first respondent to take the opportunity to put the Inquiry's account on the record to establish if there was any cause to be concerned, or whether the article was a "legitimate misrepresentation".
As a result, the first respondent wrote further on 3 September 1996 to the applicant through his solicitors indicating that he would not disqualify himself from further carrying on with the Inquiry and proposed that Mr Gaisford resume his evidence
on 16 September 1996. That letter set out in some detail the first respondent's contact with Mr McPhedran. In so far as the letter deals with whether information supplied was "off the record" or "general briefing", it does not matter; the fact is that the article appeared. There were a number of matters identified in the letter which, it asserted, did not accurately reflect the discussion with Mr McPhedran; such issues sometimes occur in conversations where nuances are intended but not understood by the listener, or a response is given unintended significance, or for other reasons. The letter characterises the article in any event as no more than "a progress report". As the second respondent's submission is made on the assumption that the contents of the article can be attributed to the first respondent, it is not necessary to decide the extent to which the article reflects accurately what was said by the first respondent, on the question of how such a publication should be regarded in such a matter as this where its full authenticity in the sense of its attribution is in issue. I should add that the assumption made by counsel for the second respondent for the purposes of the submission was not an acknowledgment that the article accurately reflects what was said by the first respondent to the journalist.
By application dated 4 September 1996 the applicant seeks orders directing the first respondent to cease further carrying on with the Inquiry which he is conducting, on the ground that there is a reasonable apprehension of bias by pre-judgment on the part of the first respondent in the course of the conduct of that Inquiry. The first respondent has appeared, and quite properly has done so only to submit to any order of the Court. The second respondent was added as a respondent by consent and has appeared to oppose the orders sought.
The reasonable apprehension of bias asserted was that the first respondent had prejudged matters upon which he was inquiring in such a way as to lead, effectively, to the applicant and others to reasonably suspect that he had closed his mind to the issues which he was addressing.
Before referring to the substantive issue in this matter, there are three matters which it is necessary to address, namely the question whether the rules of natural justice or procedural fairness as it is now commonly called apply to the first respondent in the conduct of the Inquiry, the status of the applicant to bring and maintain this application, and the power of the Court if it is otherwise appropriate to make the orders sought. The second respondent did not submit that any of those matters should be decided adversely to the applicant; its submission was simply that, in the circumstances established, the Court should not find - on the basis that the rules of procedural fairness applied to the first respondent in the conduct of the Inquiry - that a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the first respondent might not bring an impartial and unprejudiced mind to his deliberations and report and including his consideration of any evidence of the applicant or of others.
In those circumstances, I can deal with those matters briefly. I am satisfied that this Court has jurisdiction to hear and determine the matters to which the application gives rise, and that the applicant has the necessary status to bring and maintain the application. The applicant is, or will be, on the evidence a key witness before the Inquiry, to provide information concerning allegations of paedophilia within the Department and how such allegations have been handled by the Department, and its findings on those matters at the least may substantially affect his reputation and standing. He has a very real and understandable interest in the Inquiry approaching his evidence with an open mind. Kelson v Forward (1995) 60 FCR 39 especially at 60-62, and 66-67; Annetts v McCann (1990) 170 CLR 596 at 603, 612 and 621; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 577, and Mahon v Air New Zealand [1984] AC 808. I am also satisfied that the rules of procedural fairness apply to the necessary extent for this application to the first respondent in the conduct of the Inquiry. That that should be the case follows both from the nature of the Inquiry and the legislation under which it was established, and including the specific and express intention of the Minister to that effect as well as from the Terms of Reference and the publications of the Inquiry itself.
The rules of procedural fairness are not of fixed and inflexible content; they will vary at least according to the nature of the inquiry being conducted and the status of the person conducting the inquiry. Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 per Deane J at 90; Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 107 ALR 581 per Deane, Toohey and Gaudron JJ at 582.
However, it is clear that such rules in the present circumstance will include the principle, as expressed in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294 that:
"... a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it."
There are many other statements to the same effect, including of course in Reg v Watson, ex parte Armstrong (1976) 136 CLR 248 at 258-263.
That test was again adopted in Webb v R (1993-94) 181 CLR 41 at 68. Deane J commented with respect to it:
"... So stated, the test directly reflects its rationale, namely, that it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice."
Before turning to consider the article itself, and the circumstances surrounding it and the events up to 3 September 1996 referred to above, it should be noted that judges or decision makers should not disqualify themselves for bias or perceived bias (to use a shorthand expression) simply because a request to do so is made. The reasons for that appear abundantly from the remarks of the High Court in Livesey's case (above, at 294). In that case, the reasonable apprehension of bias by reason of prejudgment was found to exist because two of the judges sitting on the matter had, in a previous matter, expressed clear views about a certain question of fact which was a live and significant issue in the then current proceeding, and about the credit of a witness whose evidence was of significance on such a question of fact. On the other side of the coin, and simply by way of example, there are cases where a detailed opening statement by the chairman of a tribunal expressing in some detail concern about strategies or conduct of one of the parties before it was held not to give rise to such an apprehension, as those comments reflected no more than provisional views. (Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310). It is not uncommon for a Court having read pleadings or affidavits, or having heard part only of the evidence, to indicate in a provisional way matters of concern to it, if for no other reason than better to focus attention on the important issues and to put one party or the other on notice of matters it might need specifically to address. It could not be suggested that, in such circumstances, a reasonable bystander would reasonably apprehend that the Court was approaching the matter with a closed mind: compare Richmond River Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1992) 106 ALR 671. Furthermore, there is both authority and sound reason why, in such a matter as this, the applicant must raise quite a substantial case in order to succeed. As the Full Court of this Court (Lockhart, Pincus and Gummow JJ) said in Kaycliff (above, at 317):
"... only in unusual cases will an expression of opinion about an issue, given before the end of the hearing, be held to disqualify."
That judgment referred in particular to R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116, a decision in which one of the issues was whether a Board of inquiry was disqualified for perceived bias when it (through its delegate) had made comments to a newspaper reporter in relation to the subject of the inquiry to the effect of what was expected of an employer in supervising its employees, and that the preliminary assessment might have suggested lax supervision. The Court rejected the complaint of perceived bias, stressing the need for "... strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties." (At 116, per Dixon CJ, Williams, Webb and Fullagar JJ). Comments to much the same effect were made in Vakuatu v Kelly (1989) 167 CLR 568 by Brennan, Deane and Gaudron JJ (at 571-572) and by Dawson J (at 575-576). Ultimately, of course, each case will have to be decided on its own facts and in its particular circumstances. Winter v Australian Securities Commission (1995) 56 FCR 107; Vakauta (above) at 571.
The course of communications following the publication of the article has been set out in some detail above because the applicant's claim is based upon two separate but related propositions:
firstly, it is submitted that a reasonable person, properly informed, could conclude that the first respondent was the source of the statements made in the article and that those statements of themselves might give rise to a reasonable apprehension of bias in the sense discussed above by reason of pre-judgment, and
secondly, it is submitted that as a result of that article together with the circumstances in which it arose and the responses of the first respondent to inquiries then made of him such a reasonable apprehension of bias arises or might arise.
The first respondent, for its part, was content to have the matter assessed on the assumption that the first respondent had in fact made the comments quoted in the article.
The Court has carefully considered the article both in general, and in relation to each particular passage taken separately or conjunctively. It must be read in the context that the inquiry was by no means close to completion, and that potentially significant witnesses might still give evidence to the Inquiry; the article refers to a proposal to summons about thirty further witnesses.
The Court's judgment in relation to the article is that it is not such as might lead a fair-minded lay observer with knowledge of the material objective facts to entertain a reasonable apprehension that the first respondent had prejudged or judged in a concluded way the resolution of the matters the subject of the Inquiry. There are clear indications to the contrary: the expressions suggest at the most a view tentatively reached, but not one where the first respondent's conclusions could not or would not be changed by further evidence. A better interpretation of the article is that it represents only the report or assessment of some evidence given to the Inquiry, rather than views formed (whether tentative or final) on the ultimate issues. It refers both to further "interesting" lines of inquiry being pursued, and to the proposed further witnesses.
Accordingly, while it is not for the Court to comment upon the wisdom or otherwise of the first respondent choosing to communicate with Mr McPhedran in the manner he did, and whilst the Court can understand the applicant's undoubtedly genuine concern that the first respondent might have expressed himself in the terms reported (assuming that he did so), the article is not such as might lead a reasonable observer in the circumstances to the reasonable apprehension that the first respondent might not bring or continue to bring an open mind to the ongoing task of conducting the Inquiry and reporting in accordance with its terms of reference.
In reaching that conclusion, the Court has not overlooked the concerns expressed by the applicant and the other two deponents referred to. They are no doubt genuine concerns. The Inquiry is one of public significance, and of considerable moment to the applicant and to Mr Carroll and no doubt to others, to whom the opportunity to ventilate through evidence to an impartial inquirer matters of concern to them relevant to the Terms of Reference of the Inquiry. It is understandable that persons such as the applicant should be sensitive to such matters as the article. Ultimately, however, the matter is to be judged objectively in the circumstances. The awareness and acceptance of those concerns does not alter my judgment on the meaning or impact of the article so far as it is relevant in this application.
The applicant's second general submission outlined above combines four matters, in addition to the content of the article itself. Firstly, complaint is made of the "off the record" briefing to the journalist of itself. As mentioned above, it is not for the Court to assess the wisdom or unwisdom of that course of action; but it does not, and could not, itself lead to the reasonable apprehension of bias referred to. Secondly, it is said, the content of the briefing might make the first respondent beholden to the journalist in some way. Again, whether or not that be the case (and the Court makes no comment on that), there is nothing to suggest that, in the particular circumstances, that did or might lead to the first respondent somehow prejudging the matters the subject of the Inquiry. Thirdly, complaint is made that the first respondent may have received information relevant to his Inquiry from Mr McPhedran, and that such information probably reflected or was a conduit for the views of the Department. Finally, complaint is made of the asserted failure by the first respondent to make immediate disclosure of the detail of his conversation with Mr McPhedran and of the terms of his comments in the period following the publication of the article.
The applicant, in relation to the last mentioned matters relied upon Re J.R.L.; ex parte C.J.L. (1986) 161 CLR 342 to assert this significance. In that case, a court counsellor approached a judge of the Family Court in the judge's private chambers during a lunch break to complain about an intended adjournment of the hearing of a custody application, and in the course of the discussion volunteered information about her qualifications as a prospective expert witness and canvassed aspects of the proceedings; at a certain point, the judge asked counsel for the parties to attend. The Court by majority (Gibbs CJ, Mason and Brennan JJ, Wilson and Dawson JJ dissenting) concluded that the actions of the counsellor and judge gave rise to a reasonable apprehension that the judge would not bring an impartial mind to the resolution of the issue, and accordingly made absolute an order nisi for prohibition to restrain the judge from further hearing the matter. All judges decided the case on the basis of the fundamental rule that a judge must not hear evidence or receive representations from one side behind the back of the other (per Gibbs CJ at 346-347, 349; Mason J at 350-351; Wilson J at 359: Brennan J at 368-370; and Dawson J at 371). The minority judgments differed only in the conclusion that, on the facts including subsequent communications, there was a reasonable apprehension of bias arising in all the circumstances.
The subject conduct in that case was of course quite different from the facts of this case. Indeed, it is in the very nature of the Inquiry that it is not an inter partes dispute, and that the first respondent will conduct the inquiry in private and, subject to the terms of reference, will receive and consider evidence and submissions in private. I do not think, therefore, that the fact that he may have got some information from Mr McPhedran is of itself significant. Journalists, like others, are entitled to make submissions or give evidence to the Inquiry, whether solicited or unsolicited by the Inquiry.
In J.R.L. (supra), the Court did treat as relevant the later communications at which counsel for the parties were present. I note in particular the comment of Mason J at 351:
"The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge."
In the view of the minority, those communications played a part in dispelling the impact of the initial private communication.
Accordingly, although the submission is that such conduct in this instance enhances, rather than diminishes, the concerns of bias on the part of the applicant, and would enhance any apprehension of bias judged objectively, I have considered the subsequent communications to determine whether, judged objectively, they add in some way to the impact of the article (assuming that it represents the first respondent's views) or otherwise might give rise to the reasonable apprehension of bias.
The first respondent's communications in the period 28 August 1996 to 3 September 1996 have been set out above. He immediately, and consistently thereafter, proffered the assurance that in all respects he had and maintained an open mind. However, it also appears that his ultimate and detailed letter in response on 3 September 1996 followed communications when less information was given, and on the evidence before the Court the applicant might reasonably have concluded in the light of the communications prior to 3 September 1996 that the first respondent's role in relation to the content of the article was less than his letter disclosed.
In my view, these matters do not lead to the conclusion, which it is necessary for the applicant to establish, that the first respondent judged objectively in all the circumstances might not bring an impartial and unbiased mind to the consideration of the matters he must address in the Inquiry. However one looks at the communications over those few days, and whatever comments might be made as to their appropriateness, in my judgment they do not of themselves lead to the conclusion that the applicant, or the public, might entertain a reasonable apprehension that the first respondent might not bring an impartial and unprejudiced mind to consideration of the applicant's or others' evidence given to the Inquiry or to the determination of matters the subject of the Inquiry. Nor, in my judgment, do those communications enhance or add to the content of the article itself so as to lead to such a conclusion.
Accordingly, it is the order of the Court that the application be dismissed. There will also be an order that the applicant pay the respondents' costs.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Mansfield.
Associate:
Dated:
Counsel for the Applicant : Mr C M Erskine
Solicitors for the Applicant : Jill McSpedden
& Associates
Counsel for the Respondents : Mr I Nash
Solicitors for the Respondents : Australian Government
Solicitor
Hearing Date : 30 September 1996
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