PN1

THE SENIOR DEPUTY PRESIDENT: I might just formally take the appearances. Not that there's - well, Mr Reitano, I assume you're here for the applicant.

PN2

MR REITANO: That's correct.

PN3

THE SENIOR DEPUTY PRESIDENT: With Mr Kennedy.

PN4

MR REITANO: That's correct.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, okay, well, that will do.

PN6

MR REITANO: Well, I had understood that the ABCC were in the proceedings but that they don't want to be heard on this aspect of it.

PN7

THE SENIOR DEPUTY PRESIDENT: That's my understanding, yes.

PN8

MR REITANO: Yes. If it please, your Honour, we filed firstly a written statement of Mr Kennedy. Could I tender that?

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, so we'll just call Mr Kennedy's statement exhibit 1.

EXHIBIT #1 WITNESS STATEMENT OF MR KENNEDY

PN10

MR REITANO: I'll come to it in a moment. The second thing that we filed was an outline of submissions. I don't know that your Honour needs to mark that.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I don't normally mark submissions.

PN12

MR REITANO: Some people do.

PN13

THE SENIOR DEPUTY PRESIDENT: Some do, some don't.

PN14

MR REITANO: Could I - I don't want to spend a lot of time today dealing with the submissions by reading them to your Honour - - -

PN15

THE SENIOR DEPUTY PRESIDENT: It's really obviously - this is really an opportunity for you to add anything you want to put - - -

PN16

MR REITANO: That's what I want to do.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

PN18

MR REITANO: I don't want to, as I say, burden your Honour by standing here and reading things.

PN19

THE SENIOR DEPUTY PRESIDENT: No, no.

PN20

MR REITANO: I want to come to the statement in a moment but can I just briefly provide some sort of overview of what we say, and in terms of what I might call the three step analysis that the courts have developed in respect of the issue of apprehended bias. The first matter being identification of - I'll call it the problem for present purposes. The origins of the application. You can put it in a number of different ways, and here it's obviously - it's no surprise to your Honour. It's obviously the tweet that appeared to that's annexed to Mr Kennedy's statement, which amongst other things expressed, we put in our written submissions, the word condemnation. Antithetical sentiments towards the CFMEU, it used the word shame. It was expressed in strong terms.

PN21

It might be thought and I want to make it clear. It might be thought that the link that's drawn in the tweet between the CFMEU and funding the Australian Labour party or Mr Shorten who's pictured in it, has something to do with the application but to the extent that it does it's very much secondary and remote. The main aspect of the matter is the - as I say, the condemnation of the CFMEU by reference to the word "shame". And secondly, expressions of what some might regard when we come to the question of the fair minded lay observer, otherwise known as Mr Perfect I think. But when we come to him he might have a different view but expressing the political view that the regulator of the ABCC was an appropriate means of dealing with the conduct of the CFMEU and that the shame that the CFMEU was deserving of.

PN22

So the first item that we identify is that associated with that, and I don't say that it necessarily fits neatly into the test but associated with that is the fact that a short time ago, perhaps doing it in terms of my age but a short time ago your Honour recused yourself in respect of two other applications. We simply rely on that as, as it were an acceptance of - well, it has to be I suppose, an acceptance of the criticism that is made in respect of the capacity of your Honour to bring an independent mind to the matter.

PN23

The link, as it were, between item 1, which is the tweet if you like and the next question is well, what's the issue if you like in the proceedings that is affected by the first limb. How is it said that your Honour will apply the opinion that your Honour's expressed by adopting the tweet to the matters in issue in the proceedings. One of the things that we say in the written submissions, and we say it looms large in this case, and none of the cases appear - well, none of my review of the cases appear to have looked at issues in the way that I'm putting it to your Honour in this context.

PN24

When your Honour comes to consider the - or if your Honour comes to consider the applications for entry permits, your Honour will be required to apply the discretions that exist - I say discretions and I say that for a reason that I'll come to in a moment under section 512 and 513. The first of those - what I describe as discretions, arises because of the word "may" in section 512, and the subjective, if I can put it that way, satisfaction that your Honour's required to have that the officials are fit and proper people to hold entry permits.

PN25

That is your Honour is not on a - what might be described as a fact finding exercise where your Honour's got to find facts and apply them to statutory criteria. This case turns on your Honour being satisfied of certain matters. In that sense, and we deal with this in the written submissions I think towards the back end of the submissions, in that sense we say that the type of - I think it's in about paragraph 20. The type of process that your Honour's engaging in is an evaluative judgment of questions, of whether CFMEU (who your Honour has said should be shamed) officials are people that your Honour would be satisfied were fit and proper to hold an entry permit.

PN26

There is another element to that and I did say under 512 and 513, I don't know that it becomes a separate matter of itself but section 513(1)(g) entitles your Honour to take into consideration any other matters, and we say that the potential is that it may be infected by your Honour's personal opinion expressed in the tweet. That's the second matter.

PN27

The third issue and the more contentious one, I would submit, is the question as to whether the cause of 1 and 2, your Honour, is able to in the view of the fair minded lay observer give the matter fresh consideration no matter what the facts and arguments may be. Now I've given your Honour a reference to or in the submissions there's a reference to probably one of the two leading cases in this area; Johnson v Johnson. I don't rely on this passage or the passage that I'm going to refer your Honour to, I'm not going to read it to your Honour. I don't rely on the passage for anything other than to say that look, this isn't just Robert Reitano saying this, Kirby J says it too. That is that the fair minded lay observer is not necessarily a person who we all might agree has the same perspective on things.

PN28

At paragraph 54 of his judgement in Johnson, one of the things that Kirby J says is that in S&M Motors he disagreed with the majority on the question of what the fair minded lay observer might thing, insofar as his appreciation of or sophistication and knowledge about the law was concerned. In the majority they set out, I think they set out a conversation that might be had with the fair minded lay observer, and Murphy J says well look, I just disagree with that, I don't think he is - I think he says I don't think the fair minded lay observer is that aerodyne in terms of his understanding of legal principal and the like.

PN29

THE SENIOR DEPUTY PRESIDENT: This is in Johnson v Johnson.

PN30

MR REITANO: It's referred to at - the cases I refer to are paragraph 54 of Johnson v Johnson.

PN31

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MR REITANO: I can provide your Honour with a copy of that.

PN34

THE SENIOR DEPUTY PRESIDENT: No, I'm sure I can - if you've got it there, yes.

PN35

MR REITANO: Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: Thanks, yes.

PN37

MR REITANO: As I say, it is the difficult aspect of this case in terms of having a view as to what the fair minded lay observer might think, and what we say tilts the scales in that respect, for want of a better way of putting it, is that when your Honour had the opportunity a short time ago to consider the same matter, your Honour decided to recuse yourself from dealing with the matter and we say in the light of that, the fair minded lay observer would consider that your Honour is unable to bring a fresh mind to the consideration, the cause of the fact that back then your Honour thought that or is taken to have thought that. So they're the, if you like that's the overview of the case that we present. It does rely and I don't think I've been shy in saying that it does rely now on the fact of what happened last time.

PN38

I don't want to put this too highly because it isn't in the evidence but your Honour might recall in respect of the applications on the last occasion - there were two applications, one of Stott and I can't remember the name of the other one that's referred to in Mr Kennedy's statement. Your Honour made the observation at the time and that is before your Honour recused yourself that you thought that the applications were - I can't remember the words but fairly procedural, they weren't going to be contentious or something like that. In the light of that still, still decide.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes.

PN40

MR REITANO: Now the only other matter that I want to emphasise in terms of the evidence that - I don't know if your Honour has a different view but I do want to remind your Honour that one of the issues that doesn't seem to have been considered by any authority as yet, no doubt one day it will be, is what one takes from the concept of a tweet.

PN41

THE SENIOR DEPUTY PRESIDENT: A re-tweet indeed.

PN42

MR REITANO: Well, indeed, a re-tweet.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes.

PN44

MR REITANO: There are two things that are important and I find these applications very difficult, but there are two things that are important. One is that in order for a re-tweet to occur and I am not a Twitter person so I don't know about this, I'm relying on what Mr Kennedy tells me, and I think as I say it's in the evidence. You need to do two things in order to re-tweet. It's not just a question of pressing a button. You need to press a button twice. Now I don't know if that - - -

PN45

THE SENIOR DEPUTY PRESIDENT: I can't remember if that's true but at any rate, yes.

PN46

MR REITANO: The second thing is and perhaps the more interesting one is that by re-tweeting, can it be presumed or is it to be presumed that the re-tweeter adopts or shares the sentiments of the tweet, and we've dealt with that in the written submissions and we've said that that is the position we take. That is the common understanding of what that means.

PN47

Our position is that because of the matters that I've mentioned in terms of a tweet, in terms of what happened on the last occasion, the fair minded lay observer would be - would apprehend reasonably that your Honour would be unable to bring an impartial mind to these applications. It is not the question of probabilities, and your Honour needs to take that into account in deciding the matter. It's not a matter of us standing here and saying it's more probable than not or applying some sort of onus of proof. The question is whether there's a possibility, real or not, remote, and that's what the test of the cases talk about and Johnson is one of the cases that deals with that. Those are the matters that I wanted to deal with, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Thanks. I don't know if there's any - we'll just take Mr Kennedy's statement as - I don't need to ask him any questions or anything. He doesn't need to go in the witness box or anything.

PN49

MR REITANO: Unless your Honour wants him to.

PN50

THE SENIOR DEPUTY PRESIDENT: No, no, I don't need - - -

PN51

MR REITANO: I wouldn't mind having a go.

PN52

THE SENIOR DEPUTY PRESIDENT: No, not unless he desperately wants to. No, no, I don't need him to, that's fine. I don't really have anything further to ask.

PN53

MR REITANO: Could I say, I looked for a passage and I'm sorry that I can't assist your Honour in this but I did look for a passage and I thought it was in Re Polites, but I can't find it and it's only a sentence or two that says that the application that we make here is a serious one in the sense that you don't just say - your Honour doesn't just say - I was reminded yesterday at Melbourne that your Honour is not your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: I think I am actually.

PN55

MR REITANO: Because you had it before - - -

PN56

THE SENIOR DEPUTY PRESIDENT: We can have a debate about it but, you know, I was appointed under the Workplace Relations Act to the Australian Industrial Relations Commission, so I actually think I am, despite the fact that most of my colleagues probably are not technically, but be that as it may.

PN57

MR REITANO: I'll put it neutrally that it's not just a matter of the Commission saying well, look you're here complaining so it's just easier if I step aside. There is an obligation.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, there's an obligation unless there is - - -

PN59

MR REITANO: To decide the issue and deal with it.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, I'm aware of that.

PN61

MR REITANO: If it please the Commission.

PN62

THE SENIOR DEPUTY PRESIDENT: Thanks. I will reserve my decision on this. Thank you very much.

PN63

MR REITANO: Thank you, your Honour.

ADJOURNED INDEFINITELY [2.19 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 WITNESS STATEMENT OF MR KENNEDY............................. PN9