Fair Work Commission

Reasonable apprehension of bias

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

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, however 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 judge (or Commission member) should try the case 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

References

^[1] R v Watson; Ex parte Armstrong [1976] HCA 39 (3 August 1976), [(1976) 136 CLR 248; (1976) 9 ALR 551, 561‒565]; cited in Livesey v New South Wales Bar Association [1983] HCA 17 (20 May 1983) at para. 7, [(1983) 151 CLR 288, 293‒294].

^[2] Livesey v New South Wales Bar Association [1983] HCA 17 (20 May 1983) at para. 8, [(1983) 151 CLR 288]; citing R v Shaw; Ex parte Shaw (1980) 55 ALJR 12 (14 November 1980) at p. 16 (Aickin J).

^[3] Dain v Bradley & Grant [2012] FWA 9029 (Booth DP, 29 October 2012) at para. 14; citing British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 (9 February 2011) at para. 104.

^[4] Re J.R.L. Ex parte C.J.L. [1986] HCA 39 (30 July 1986), [(1986) 161 CLR 342, 352].

^[5] Webb v The Queen [1994] HCA 30 (30 June 1994), [(1994) 181 CLR 41, 74]; see also Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction [2019] FWCFB 3855 (Hamberger SDP, Gostencnik DP, Saunders DP, 4 June 2019).

^[6] Re J.R.L. Ex parte C.J.L. [1986] HCA 39 (30 July 1986), [(1986) 161 CLR 342, at p. 352].

^[7] ibid.

^[8] Johnson v Johnson [2000] HCA 48 (7 September 2000) at para. 11, [(2000) 201 CLR 488].

^[9] The Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 (29 March 2001) at para. 71, [(2001) 205 CLR 507].

^[10] Oram v Derby Gem Pty Ltd PR946375 (AIRCFB, Lawler VP, Kaufman SDP, Blair C, 22 July 2004) at para. 110, [(2004) 134 IR 379]..

^[11] Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25 (20 June 1991) at para. 10, [(1991) 173 CLR 78].

^[12] ibid.

^[13] Re Media, Entertainment and Arts Alliance and Theatre Managers’ Association; Ex parte Hoyts Corporation Pty Ltd (No 2) [1994] HCA 66 (9 February 1994) at para. 12, [(1994) 119 ALR 206].

^[14] Re J.R.L. Ex parte C.J.L. [1986] HCA 39 (30 July 1986), [(1986) 161 CLR 342, 350].

^[15] ibid.