Gaisford v Hunt
[1996] FCA 1072
•6 DECEMBER 1996
CATCHWORDS
ADMINISTRATIVE LAW - natural justice - “off-the-record” briefing to a journalist - whether prejudgment of matters the subject of Inquiry under statute - reasonable apprehension of bias - ostensible bias established.
The Queen v Australian Stevedoring Industry Board;
Ex parte Melbourne Stevedoring Co. Pty Limited (1953) 88 CLR 100 considered.
Richmond River Broadcasters Pty Limited v Australian Broadcasting Tribunal (1992) 106 ALR 671 considered.
ALASTAIR JOHN GAISFORD v CHRISTOPHER TERENCE HUNT AND THE COMMONWEALTH OF AUSTRALIA
No. ACT G68 of 1996
BEAUMONT, O’LOUGHLIN AND LEHANE JJ.
SYDNEY
6 December 1996.
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G68 of 1996
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ALASTAIR JOHN GAISFORD
Appellant
AND: CHRISTOPHER TERENCE HUNT
First respondent
AND: THE COMMONWEALTH OF AUSTRALIA
Second respondent
CORAM: BEAUMONT, O’LOUGHLIN AND LEHANE JJ.
WHERE MADE: SYDNEY
DATE: 6 DECEMBER 1996
MINUTES OF ORDER
THE COURT ORDERS:
Appeal allowed.
Set aside the orders made at first instance; in lieu thereof, order that the first respondent not proceed with the subject Inquiry.
The second respondent pay the costs of the appellant at first instance and on the appeal.
Make no order in respect of the costs of the first respondent at first instance or on appeal.
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 G68 of 1996
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ALASTAIR JOHN GAISFORD
Appellant
AND: CHRISTOPHER TERENCE HUNT
First respondent
AND: THE COMMONWEALTH OF AUSTRALIA
Second respondent
CORAM: BEAUMONT, O’LOUGHLIN AND LEHANE JJ.
DATE: 6 DECEMBER 1996
REASONS FOR JUDGMENT
THE COURT
INTRODUCTION
The appellant, Alastair John Gaisford, applied to the Court for judicial review of the conduct of the first respondent, Christopher Terence Hunt. In essence, Mr Gaisford sought an order that Mr Hunt not proceed with a statutory Inquiry. Mr Gaisford alleged that he had been denied natural justice by Mr Hunt by virtue of there being a reasonable apprehension of bias by Mr Hunt in carrying out his Inquiry. A judge of the Court
dismissed the application. Mr Gaisford now appeals from that order.
THE BACKGROUND
Mr Hunt is conducting his Inquiry (”the Inquiry”) as the delegate of the Public Service Commissioner, pursuant to Regulation 72A of the Public Service Regulations as follows:
“72A.It shall be the duty of the Board to inquire into or investigate any matter in relation to the Public Service, which, in the opinion of the Board, should be inquired into or investigated.”
The Inquiry’s terms of reference 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.
2.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.
3.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.
4.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.
5.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.
In the conduct of his Inquiry, Mr Hunt issued a media statement and statements to staff of the Department of Foreign Affairs and Trade in June 1996 inviting contact with the Secretary to the Inquiry by July 1996 from those wishing to report any matter, to give evidence, or to provide information or documentation.
Mr Hunt apparently received a significant number of submissions and began to interview witnesses in private.
Mr Gaisford is an officer of the Department. The primary Judge found, and it is common ground, that on 1 March 1996 Mr Gaisford was suspended from duty and suspended from access to all security classifications of national security and sensitive classified information held by the Department; that he has brought separate proceedings in this Court challenging those decisions to so suspend him; and that information which Mr Gaisford proposes to supply to the Inquiry relevant to its terms of reference may be relevant also in that separate proceeding. It is also common ground that one of the sources of information relevant to the Inquiry, identified by it, is Mr Gaisford. Mr Hunt sought information from Mr Gaisford, through Mr Gaisford’s Solicitor, by letter of 16 July 1996. It is common ground that
Mr Gaisford and Mr Hunt are both of the view that Mr Gaisford can give significant evidence to the Inquiry.
The learned trial Judge found that in August 1996, in circumstances to be described more fully later, Mr Hunt (apparently) decided that some publicity for his Inquiry might be appropriate to stimulate further information or submissions to the Inquiry. Consequently, a discussion took place between him and Ian McPhedran of “The Canberra Times” which led to an article being published in that newspaper on 28 August 1996. The article was as follows:
“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 [sc. an apparent] 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 early November.”
On 29 August 1996, Shane Joseph 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 Mr Hunt 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.”
Mr Hunt indicated that he would make such a statement on the record before asking Mr Carroll any questions. Mr Hunt 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.”
Mr Hunt did not then indicate that he had in fact spoken to the reporter from “The Canberra Times”.
Mr Hunt had also been contacted by a solicitor for Mr Gaisford 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 Mr Hunt contacted the solicitor for Mr Gaisford and said:
“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 as follows:
“I refer to our telephone discussion about the article in the Canberra Times of 28 August.
Having given the matter some thought, I do not wish to enter into any media debate about the article, despite some strong concerns I have, as to its content. Nevertheless, I am anxious to allay any concerns that you or your client may have.
Accordingly, can I give you my absolute and unequivocal assurance that I have reached no conclusions on any aspects of my terms of reference. Insofar as the article may convey any other impression it is wrong.
As you know, I have for some time been most anxious to take evidence from Mr Gaisford. Any evidence I receive from any source, indicating either the existence, or ‘cover up’ of relevant paedophile activity will be vigorously pursued by me.
I look forward to the preliminary discussions on Friday next at 10.30 a.m., and to receiving Mr Gaisford’s evidence on Monday next at 1.00 p.m.”
On 2 September 1996 Mr Gaisford attended to give evidence, represented by counsel who raised concerns about the article, and sought information as to whether the Inquiry was aware of the source of the information apparently provided to the newspaper. 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 Mr Hunt nor any member of his staff would speak directly on the record with the media. Mr Hunt 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.”
Mr Hunt then referred to the solicitor’s letter set out above, and to similar comments made when Mr Carroll and his solicitor were present. Mr Hunt went on to say:
“...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 Mr Gaisford then applied to Mr Hunt to disqualify himself on the grounds of reasonable apprehension of bias. Mr Hunt 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. 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, in a telephone conversation between Mr Hunt and the solicitor and counsel for Mr Gaisford, Mr Hunt was urged to take “... the opportunity ...” then offered to him to put the Inquiry’s account on the record. In the course of the discussion, Mr Hunt said:
“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 Mr Gaisford continued to urge Mr Hunt 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 “misrepresentation”.
In response, Mr Hunt wrote further on 3 September 1996 to Mr Gaisford’s solicitors as follows:
“In yesterday’s proceedings [counsel] submitted to me, on behalf of your client, that I should disqualify myself on the grounds of reasonable apprehension of bias. I understand that submission to have been based upon the proposition that a reasonably informed observer, reading the ‘Canberra Times’ article that appeared on 28 August 1996, could conclude that the Inquiry had prejudged the issues falling to it for determination. I responded that I was not disposed to accede to the application that I disqualify myself but that I would seek some legal advice before reaching a final decision. Having considered the matter further and taken legal advice, I have concluded that the circumstances surrounding the publication of the ‘Canberra Times’ article do not warrant me disqualifying myself and further, that the public interest would not be served by my doing so.
There have already been extensive discussions and correspondence between us concerning the Canberra Times article, but I offer the following in the hope that it will further allay your client’s concerns:
(a)Mr McPhedran having contacted the Inquiry Secretary and having sought to speak to me, I took a considered decision that an appropriate form of ‘free publicity’ in the Canberra Times might be useful, in case there should be any persons still contemplating bringing information before the Inquiry.
(b)at the outset of my discussion with him, I made it plain to Mr McPhedran that nothing I said was to be directly quoted and that anything I said that went beyond a pure administrative and procedural progress report was not for publication and was for general briefing purposes; I reiterated the latter point on several occasions during our discussion; my purpose in providing limited general background was to encourage an appropriate article as per (a) above;
(c)I was therefore deeply concerned to see an article which not only included quotes, but referred to a number of matters (particularly the first, second, fourth, fifth and sixth paragraphs of the article) which, even if accurate reflections of my comments (which I would contest), were clearly not intended to be ‘on the record’; I can only assume there was a misunderstanding between Mr McPhedran and me;
(d)while I am, of course, continuously evaluating the material before me, at no stage, on or off the record, did I suggest to Mr McPhedran that I had reached any conclusions on any aspects of my terms of reference;
(e)at no stage, on or off the record, did I refer to the source or content of any evidence I have received;
(f)at no stage, on or off the record, did I state or imply that there was a ‘possible homophobic vendetta’; my recollection is that it was Mr McPhedran who put such a theory to me, and I responded that it was obviously a view that some people held, but I was in no position to
form any views on that (I also took the opportunity to seek his own views, as someone who had extensive dealings with the Department);(g)there are a number of other respects in which I believe that, in particular, the first, second, fifth and sixth paragraphs of the letter do not fully and accurately reflect comments I made which, in any even, were stipulated to be not for publication.
As you know, I gave careful consideration to whether I should pursue my concerns publicly, but have to date been of the view that that might be counterproductive. A factor in my reaching this view was that, even if the article represented a full and accurate reporting of my comments (which, of course, I would contest), its general tenor is nevertheless essentially by way of a ‘progress report’ (‘so far’, ‘evidence to date’, etc.) and would not, in my view, convey any impression that the Inquiry had reached premature conclusions on any issues.
Insofar as a newspaper article has appeared whose content (apparently because of misunderstandings between Mr McPhedran and me) has caused concern to your client, that is a matter of great regret to me, and I can only urge that he give the fullest consideration to the explanations and assurances I have provided. I repeat that I have reached no conclusions whatsoever on any aspect of my terms of reference, and any evidence I receive from any source, indicating the existence or ‘cover up’ of relevant paedophile activity, will be vigorously pursued by me. I repeat that my motivation in speaking to Mr McPhedran was to publicise the existence of the Inquiry and to encourage those with relevant information to come forward with it. I would be extremely concerned if the resulting publicity were to have the opposite effect to what I intended. ....”
THE PROCEEDINGS AT FIRST INSTANCE
At first instance, and before us, Mr Hunt appeared only to submit to any order save as to costs. The second respondent, the Commonwealth, appeared to oppose the relief sought.
The case for Mr Gaisford consisted of affidavit evidence from himself and his solicitor, from Mr Carroll and his solicitor and from Angela Hanbury-Sparrow, who has also made a submission to the Inquiry and is another potential witness before the Inquiry. Mr Gaisford and Mr Carroll were cross-examined before the primary Judge.
Mr Gaisford’s claim for relief was based upon two separate but related propositions: (1) a reasonable person, properly informed, could conclude that Mr Hunt 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 by reason of a pre-judgment; and (2) as a result of the article, together with the circumstances in which it arose, and the responses of Mr Hunt to inquiries then made of him, such a reasonable apprehension of bias arises or might arise.
The evidence called by the Commonwealth consisted of an affidavit sworn by David William Wallace, Legal Adviser to the Inquiry, referring in the main to the transcript of the Inquiry’s proceedings.
Mr Hunt did not give evidence. It was not suggested that he was unavailable to give evidence. However, counsel for the second respondent invited the Judge (as we were invited) to proceed, as his Honour put it, upon the “assumption” that the contents of the article “can be attributed” to Mr Hunt. At the same time, it was sought to be said that this was “not an acknowledgment that the article accurately reflects what was said by (Mr Hunt) to the journalist”. Later in his reasons, the primary Judge noted that the Commonwealth “was content to have the matter assessed on the assumption that [Mr Hunt] had in fact made the comments quoted in the Article”.
THE REASONING OF THE PRIMARY JUDGE
His Honour was satisfied that the Court had jurisdiction to hear and determine the matter and that Mr Gaisford had the necessary status to bring and maintain the application: he is, or will be, 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, his Honour held, a very real and understandable interest in the Inquiry approaching his evidence with an open mind. The trial Judge was also satisfied that the rules of procedural fairness apply to the necessary extent to the conduct of the Inquiry.
None of this was disputed at first instance or before us.
But his Honour went on to reject Mr Gaisford’s primary submission as follows:
“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 [Mr Hunt] 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 [Mr Hunt’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.”
In dealing with Mr Gaisford’s second contention, his Honour dealt with two of its aspects as follows:
“Firstly, complaint is made of the ‘off the record’ briefing to the journalist of itself. [But] 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 [Mr Gaisford] beholden to the journalist in some way. ...[W]hether 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 [Mr Gaisford] somehow prejudging the matters the subject of the Inquiry.”
His Honour then mentioned two further aspects of this complaint, namely: (1) that Mr Hunt may have received information relevant to his Inquiry from Mr McPhedran, and that such information probably reflected or was a conduit for the view of the Department; and (2) that Mr Hunt failed 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.
Rejecting these complaints also, the primary Judge distinguished the reasoning in Re J.R.L.; Ex parte C.J.L. (1986) 161 C.L.R. 342, where it was held that a judge must not hear evidence or receive representations from one side behind the back of the other. His Honour said:
“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 [Mr Hunt] 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.”
The primary Judge, went on to consider whether the subsequent communications, if viewed objectively, added in some way to the impact of the article, or otherwise might give rise to the reasonable apprehension of bias. His Honour said:
“In my view, these matters do not lead to the conclusion, which it is necessary for [Mr Gaisford] to establish, that [Mr Hunt] 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 [Mr Gaisford], or the pubic, might entertain a reasonable apprehension that [Mr Hunt] might not bring an impartial and unprejudiced mind to consideration of [Mr Gaisford’s] or others’ evidence given to the Inquiry or to the determination of matters the subject of the Inquiry. Nor, in my judgment, do these communications enhance or add to the content of the article itself so as to lead to such a conclusion.”
THE GROUNDS OF APPEAL
By his notice of appeal, Mr Gaisford now appeals on two grounds:
(1) That his Honour erred in finding that the comments of Mr Hunt as reported in the article was not such as to constitute reasonable apprehension of bias by prejudgment on Mr Hunt’s part.
(2) That his Honour further erred in finding that Mr Gaisford had failed to establish that the conduct of Mr Hunt subsequent to the publication of the article was such that he might not bring an impartial and unbiased mind to the matters he must address at the Inquiry.
We have set out the grounds as they appear in the notice of appeal. They are, perhaps, somewhat oddly expressed. Ground (1) obviously is intended to refer to a finding that the comments were such as to give rise to a reasonable apprehension of bias, rather than to “constitute” such an apprehension; ground (2) reads as if it complains of a failure to find that actual, rather than apprehended, bias had been established, but Senior Counsel for Mr Gaisford made it clear that he complained of apprehended, not actual, bias.
CONCLUSIONS ON THE APPEAL
(a) The legal principles
The common law principles of natural justice in this area are well established.
In Reg. v. Watson; Ex parte Armstrong (1976) 136 C.L.R. 248, Barwick C.J., Gibbs, Stephen and Mason JJ. said (at 263):
“It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision. To repeat the words of Lord Denning M.R. which have already been cited, ‘Justice must be rooted in confidence: and confidence is destroyed when
right-minded people go away thinking: ‘The judge was biased.’’”
There, in the course of interlocutory applications, a judge stated that he would not accept the evidence of either party at the trial unless corroborated. It was held (at 265) that the “formation of a preconceived opinion that neither party is worthy of belief amounts to bias...”. Their Honours went on to say (at 265):
"A party who believes, on reasonable grounds, that the judge has decided, in advance, to disbelieve her evidence cannot have confidence in the result of the proceedings, even if the judge has decided to reject the evidence of her adversary as well.”
In Livesey v The New South Wales Bar Association (1983) 151 C.L.R. 288, two members of the Court of Appeal hearing a disciplinary matter had, in earlier proceedings, between different parties, expressed adverse opinions on questions, including the credit of a witness, which were also relevant to the disciplinary matter. It was held that a fair minded observer might entertain apprehension of bias by reason of the prejudgment of the issues or the credibility of the witness. Mason, Murphy, Brennan, Deane and Dawson JJ., noting (at 293) that it was common ground that the principle in Watson’s Case was to be applied, said (at 193-4):
"That principle is 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.”
In Vakauta v. Kelly (1989) 167 C.L.R. 568, in a trial of a personal injuries case, the judge made a statement in his judgment critical of evidence given by one the defendant’s medical witnesses, saying, inter alia, that the evidence was “as negative as it always seems to be...”. It was held that this amounted to ostensible bias since the Judge’s comments would lead to the conclusion, in the mind of the reasonable or fair-minded observer, that the Judge was heavily influenced by views he had formed on other occasions rather than by an assessment based on the case at hand. Brennan, Deane and Gaudron JJ. said (at 571-2):
"Knowledge of his or her own integrity can sometimes lead a judge to fail to appreciate that particular comments made in the course of a trial may wrongly convey to one or other of the parties to the litigation or to a lay observer an impression of bias. For example, the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge’s approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness’ views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.”
In Grassby v. The Queen (1989) 168 C.L.R. 1, it was held that a Judge sitting as a member of an appeal court should have disqualified himself from sitting because of a comment made by him in a previous judgment. Dawson J. (with the agreement of Mason C.J., Brennan, Deane and Toohey JJ.) said (at 20-1):
"The test which is to be applied when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him: see Livesey v. New South Wales Bar Association; Reg. v. Watson; Ex parte Armstrong. If so, then the judge ought not to proceed to hear the matter. Of course, as Gibbs C.J. pointed out in Reg. v. Simpson; Ex parte Morrison, the mere expression of the apprehension of bias does not establish that it is reasonably held; that is a matter which must be determined objectively.
In this case it is true that the comment in question was made in the context of another case, Waterhouse v. Gilmore, which involved issues different from those before the Court of Criminal Appeal in the present case. The comment was made by his Honour in a context in which he was attempting to draw a distinction between prosecutions for criminal defamation serving only private interests and those which, because they had a public aspect, justified the use of the criminal law. But in seeking to draw that distinction and in using the present case as an example, his Honour necessarily spoke of the prosecution of the applicant in terms of approbation at a time when the evidence against the applicant had not even been heard in committal proceedings. He did so without reference to any presumption of innocence. The comment was made, not merely in the course of argument where it may have been regarded as the momentary choice of a convenient example, but in a considered
judgment. Moreover, the reference to the prosecution against ‘Mr. A. Grassby, the former politician’ as being ‘obviously an appropriate use of the criminal law’ involves an element of prejudgment in emphatic, if not coloured, terms which must surely have justified apprehension on the part of the applicant that the attitude of his Honour towards his prosecution might not be impartial or unprejudiced.”
In Webb v. the Queen (1994) 181 C.L.R. 41, it was held that the settled test for alleged bias applied in the case of a juror. Mason C.J. and McHugh J. said (at 47):
"When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case. The Court has applied the same test to a Commissioner of the Australian Industrial Relations Commission and to a member of the Australian Broadcasting Tribunal. The Court has specifically rejected the real likelihood of bias test. The principle behind the reasonable apprehension or suspicion test is that it is of ‘fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’. Although the role of the juror is not the same as that of the judge, a commissioner or a member of a quasi-judicial tribunal, we do not think that the difference between the role of the juror and the role of those persons warrants any different test for alleged bias.
Moreover, in determining whether the conduct of a juror gives rise to a fear of bias, Australian courts have frequently applied the reasonable suspicion test.”
Brennan J. agreed (at 57).
Deane J. said (at 68):
"... [T]he test [of ostensible bias] 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. However, the test is an objective one and the standard to be observed in its application is that of a hypothetical fair-minded and informed lay observer. That being so, it is convenient to frame the test itself in terms of reasonable apprehension on the part of that particular inhabitant of the common law. I have used the word ‘apprehension’ in preference to the word ‘suspicion’ for the reason that the latter word is capable of conveying shades of meaning which are inappropriate in this context. As a practical matter, however, there is little, if any difference between the content of the two words when prefaced by ‘reasonable’ and I have, in referring to authority in this judgment, on occasion treated them as interchangeable.”
See also Minister for Immigration v. Mok (1994) 55 F.C.R. 375 where Sheppard J. (with the agreement of Black C.J. and Lockhart J.) held (at 397) that the “reasonable apprehension” test applied to a delegate of the Minister who, as here, was obliged to accord procedural fairness.
(b) The application of the principles
Whilst at first instance, and before us, there was little, if any, room for disagreement as to the principles to be applied, the parties departed fundamentally on the proper manner of their application.
On behalf of the Commonwealth it is submitted that the expression of a preliminary view will not be sufficient to establish a reasonable apprehension of bias. Reliance is placed upon observations made by Wilcox J. in Richmond River Broadcasters Pty Ltd v. Australian Broadcasting Tribunal (1992) 106 A.C.R. 671. It was there held that no reasonable apprehension of bias was made out when, in an inquiry by the Broadcasting Tribunal into the grant of a licence, prior to the oral hearing, the Tribunal issued a document described as its “preliminary view” on a question before it.
Wilcox J. said (at 681-2):
"As with the case of a judge, what is critical is that, until the issue is finally decided, any view which is expressed be merely a preliminary view, with a clear invitation to the parties to respond critically to it, and that the decision-maker be genuinely willing to consider on their merits any responses which might be made. I do not believe that a person who takes this course would be regarded by an objective observer as unable to bring an impartial and unprejudiced mind to the issues to be resolved. On the contrary, such a decision-maker would be seen as conscientiously grappling with those issues, in a way designed to extract maximum assistance from the parties.”
In our view, the Richmond River Case should be distinguished from the present circumstances. In that case, the Tribunal was really doing no more than
indicating, quite openly and with proper formality, to the parties wishing to contend to the contrary on a particular point, that they had the onus of persuading the Tribunal. This does not suggest, objectively speaking, any lack of impartiality on the part of the Tribunal.
But in the present case, these elements were not present: The process here was not open; nor was it carried out with proper formality, so as to make it clear where the matter stood. On the contrary, the process was quite informal, irregular and clouded with uncertainty, even up to the present time. As has been said, Mr Hunt did not give evidence, and the history of the affair, as it developed, gives rise to considerable uncertainty as to what Mr Hunt actually said to the journalist. The Court has been asked to assume that the comments made in the article, presumably all of them, may now be attributed to Mr Hunt, notwithstanding his earlier denials. Of itself, this is an unsatisfactory aspect of the case, which certainly had no counterpart or parallel in Richmond Rivers. We bear in mind that the test of ostensible bias requires that we have regard to all of the circumstances of the case in assessing whether there are reasonable grounds for the relevant apprehension. In other words, our inquiry is not confined to the comments made in the article. Even if we were so confined, for reasons to be given later, we
would not treat all the observations there made as merely “preliminary”. We will return to this.
The Commonwealth placed much reliance, as the learned primary Judge did, upon the reasoning in The Queen v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 C.L.R. 100. That was an application to restrain a delegate of the Board inquiring into the fitness of a company to continue to be registered as an employer. Prior to the inquiry, the delegate had a conversation with a newspaper reporter in relation to the subject of the inquiry. It was held that ostensible bias had not been established.
However, it is important, in our view, to bear in mind the relevant facts of that case, as they appear in the report (88 C.L.R. at 103):
"At about 5 p.m. on Thursday, 23rd October 1952, James Vickers Willis, the Shipping Reporter of the ‘Sun’ newspaper, came into my office and spoke to me. He and other shipping reporters representing other newspapers usually called for shipping news at about that time on each day. He said to me ‘You have got the Melbourne Stevedoring Co. inquiry on on Monday?’ I said ‘No. I’ve got it on tomorrow’. He said ‘If it’s on in the morning I’d better write something on it. Does this mean that their registration will be cancelled?’ I said ‘No, but they have been called on to show cause why their registration should not be cancelled or suspended’. He said ‘Is this the same Company that was in trouble before?’ I said ‘Yes, we had an inquiry and
they were warned’. He said ‘When would that be?’ and I said ‘It was in July’. He then said ‘This is the story, isn’t it? Two men that were working for them were drunk on the job and were arrested and taken to Bourke Street West’. I said ‘No, they were away from the job and were stopped by the gate-keeper when they were coming back. Then they were arrested’. He said ‘How can you blame the employer if the men leave a job without permission and are arrested while they are away for being drunk?’ I said ‘We don’t expect them to be able to hold the men on the job but we do expect them to exercise proper supervision to find out whether men on their pay roll are missing. If they can wander away without the Company’s knowledge it suggests lax supervision and that’s why we are holding the inquiry’.
Dixon C.J., Williams, Webb and Fullagar JJ. said (at 116):
"It is not difficult to understand that the employer whose case he must judge should feel alarmed at a statement appearing in the press from which it might well be inferred that upon some of the contentions he wished to advance his case had been prejudged. But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be ‘real’. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that ‘preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded’, per Charles J., Reg. v. London County Council; Ex parte Empire Theatre.
It is unfortunate that the respondent Neil permitted himself to be interviewed by a reporter on the subject in which he was called upon to act quasi-judicially. But, accepting his version of what occurred, it cannot be said that he has so conducted himself as to raise a sufficient case of bias to justify a writ of prohibition.”
In our view, the case may be distinguished on its facts from the present matter. First, Mr Neil did not express a conclusion: he suggested at most a possible outcome of his inquiry. Secondly, Mr Neil was approached by the reporter and questioned about the Inquiry: he did not initiate the conversation. In the present case, Mr Hunt felt that “a little bit of publicity in the local rag might move things along a bit”. In other words, Mr Hunt may be seen as initiating the action that followed. Moreover, the only matter put against Mr Neil was the single incident described above. In Mr Hunt’s case, the whole course of events is relied upon.
As we have said, we do not regard the comments made in the article as “tentative” or “preliminary”. This conclusion follows, we think, from a consideration of the article as a whole, and from its controversial and emotive tenor.
This conclusion is reinforced by a consideration of the following specific statements in the article:
“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.” (Emphasis added)
Although the words “so far” are used, this paragraph suggests that the evidence is all one way to the effect stated. The statement that the evidence, so far, had “uncovered” loose language and a possible homophobic vendetta suggests more than a tentative or preliminary conclusion: to “uncover” something is to find out, or reveal, that it exists. But neither Mr Gaisford nor Mr Carroll, both major witnesses, had given evidence up to that point.
“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.” (Emphasis added)
The first sentence suggests that a final conclusion has been arrived at. To say that allegations have been “dispelled” is not obviously to leave open the possibility that later evidence will establish their veracity. And although the second sentence speaks of evidence “to date”, again it fails to disclose that neither Mr Gaisford nor Mr Carroll had testified by then.
“One source said evidence to date had revealed considerable ‘looseness of language’ around paedophile activity.” (Emphasis added)
Again, the reference to “to date” should be understood against the background previously mentioned.
“There is a need to tighten up terminology and to take account of the difference between a seven-year-old and a [sc. an apparent] 15 year-old who is actually 20 because Asian males look young.” (Emphasis added)
This reads as a final conclusion.
“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. (Emphasis added)
Again, this appears to be a definite, final view.
“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.” (Emphasis added)
Notwithstanding the reference to the exploration of lines of inquiry, to say that lessons “would be learned” suggests that a conclusion, albeit one encompassing a variety of possible lessons, had been reached.
It must follow, in our opinion, that we cannot, with all respect, accept the view of the primary Judge that the comments in the “Canberra Times” “suggest at most a view tentatively reached”; or that the article “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”. On the contrary, as we have said, some of the comments are explicit in their expression of a conclusion. Even where reference is made to evidence “to date”, the context suggests something more than a tentative or preliminary view. For instance, in the second paragraph it is said (in the second sentence) that the “evidence to date.... dispels allegations of a ‘gay mafia’ within DFAT”. This is not the same as a statement that there is no evidence on that question. Rather, it suggests, notwithstanding that neither Mr Gaisford nor Mr Carroll had been called, that the allegations had been “discredited”, that is, that they should be put aside as without credibility. This is at least close to an indication of a final view.
But the matter does not end with the tenor of the article. As we have said, the whole of the circumstances should be taken into account. They include first, the fact that an “off-the-record” briefing to a journalist was provided by a person in Mr Hunt’s position; and, secondly the failure by Mr Hunt to make, immediately, a full and
true disclosure, when challenged about the article, of his conversation with the journalist and its circumstances. In our view, these considerations must exacerbate any reasonably held apprehension of bias arising from the comments made in the “Canberra Times”.
It follows, in our opinion, that a case of ostensible bias has been established, and that the application of the rules of natural justice requires that Mr Hunt not proceed further with his Inquiry.
We make two concluding observations: one is that we have analysed what the article says in some detail in circumstances where we do not know precisely what Mr Hunt said to the reporter but are invited to assume, or proceed on the basis, that what is said in the article may be “attributed” to Mr Hunt and that he said what is quoted. That is we think, the appropriate course. Because it is clear that the source of the article was a conversation between the reporter and Mr Hunt, and because Mr Hunt has not made clear in what precise respect, if any, the article misrepresents what he said, whether on or off the record, the relevant question must be, would what is said in the article give rise to a reasonable apprehension of bias on the part of Mr Hunt?
The other observation is that we are, of course, aware that the orders which we shall make will have the result that an inquiry which has already proceeded some distance will be brought to a premature end so that considerable time and resources will have been wasted. It is perhaps to state the obvious, however, to say that a finding of a reasonable apprehension of bias can lead to no other result.
ORDERS
We make the following orders:
Appeal allowed.
Set aside the orders made at first instance; in lieu thereof, order that the first respondent not proceed with the subject Inquiry.
The second respondent pay the costs of the appellant at first instance and on the appeal.
Make no order in respect of the costs of the first respondent at first instance or on appeal.
I certify that this and the preceding thirty five (35) pages are a true copy of the Reasons for Judgment herein of the Court.
Associate
Dated:6 December 1996
Counsel and Solicitors Mr. D.M.J. Bennett Q.C. with
for appellant: Mr. C. Erskine instructed by
Jill McSpedden & Associates
Counsel and Solicitors Ms. J. Bonsey instructed by
for first and second Australian Government Solicitor
respondents:
Date of hearing: 27 November 1996
Date Judgment delivered: 6 December 1996
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