Bias

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Introduction

A Fair Work Commission Member should not hear a case if there is a reasonable apprehension that they are biased.^[1]

Reasonable apprehension of bias means that a party to a matter before the Commission has a genuine concern that the Commission Member might not be impartial and as a result may not deal with the matter in a fair and balanced way.

The question of a reasonable apprehension of bias is a difficult one involving matters ‘of degree and particular circumstances [which] may strike different minds in different ways’.^[2]

A reasonable apprehension of bias involves deciding whether a ‘fair-minded lay observer’ would reasonably apprehend that the decision-maker would not decide a case impartially and without prejudice.^[3] It is not bias where a decision-maker decides a case adversely to one party.^[4]

Reasonable apprehension of bias may arise in the following four (sometimes overlapping) ways:

if a Commission Member has some direct or indirect interest in the case, financial or otherwise
if a Commission Member has published statements or acted in a way that gives rise to a reasonable apprehension of prejudice
if the Commission Member has some direct or indirect relationship, experience or contact with anyone involved in the case, and
if the Commission Member has some knowledge of extraneous information, which cannot be used in the case, but would be seen as detrimental.^[5]

While it is important that justice must be seen to be done, it is of equal importance that Commission Members discharge their duty to hear the evidence and decide the matter.^[6] This means that they should not accept the suggestion of apprehended bias too readily.^[7]

Expression of a view or prejudgment

In deciding whether a Commission Member should be disqualified for the appearance of bias, the Commission will consider whether a reasonable and fair minded person might anticipate that the Commission Member might approach the matter with a partial or prejudiced mind.^[8]

The question is not whether the decision-maker’s mind was blank, but whether their mind was open to persuasion.^[9]

The expression of a provisional view on a particular issue, or warning parties of the outcome of a provisional view, is usually entirely consistent with procedural fairness.^[10]

Prior relationship

Generally, a Commission Member will not be disqualified in circumstances where it is found that the Member, before being appointed as a Member, gave legal advice or represented a person who now appears before them as a party in their capacity as a Member.^[11] However the Member should not hear a matter if the Member:

is determining the correctness of advice they gave to a party in their role as a legal representative
recommended a course of conduct to a party in their role as a legal representative and the legality, reasonableness or wisdom of that conduct is to be determined, or
is determining the quality of the advice they gave while they were the legal representative of one of the parties.^[12]

Extraneous information

The general rule is that a Commission Member should disclose any independent knowledge of factual matters that affect or may affect the decision to be made.^[13]

A central element of the justice system is that a matter must be decided based on the evidence and arguments presented.^[14] A judge (or Commission Member) should not take into account, or indeed receive, secret or private representations from a party or from a stranger about the case they are to decide.^[15]

Case examples

NO apprehension of bias

Prior relationship and representation in alleged similar matter

National Tertiary Education Industry Union v Victoria University [2010] FWA 2263 (Gooley C, 17 March 2010).

The respondent requested that this matter be referred to another Commission Member on the basis of reasonable apprehension of bias. The reasons the respondent gave were:

the Member had, in her previous role as a solicitor, acted on behalf of the applicant in a similar dispute with the respondent, and
the legal firm that the Member had worked for in their previous role was acting for the applicant in the current matter before the tribunal.

It was held that there was no relevant overlap between the previous and current proceedings, and that the Member’s previous association with the applicant and the applicant’s legal firm was, on the authorities, an insufficient reason for the Member to stand aside from the matter. Accordingly the Member declined to disqualify herself.

Alleged prejudgment

RMIT University v National Tertiary Education Industry Union [2012] FWA 2418 (Lawler VP, 21 March 2012).

The union in this matter requested that the Commission Member disqualify himself from hearing an application for an order to stop industrial action. The reason was that the Member had, in deciding a related dispute involving the same parties, characterised any future ‘ban’ on the completion of a particular project as unprotected industrial action. The ban had eventuated and was the subject of the current application.

It was held that because the earlier decision did not amount to any conclusion that such a ban was in place, it could not indicate to a fair-minded and impartial observer that an order to stop industrial action should issue.