FEDERAL COURT OF AUSTRALIA

Ferguson v Cole [2002] FCA 1411

ADMINISTRATIVE LAW – Royal Commission into the building and construction industry – production of an interim report by the Royal Commissioner – pre-judgment bias – whether Royal Commissioner displayed actual bias towards the applicants – whether report of the Royal Commissioner gave rise to apprehended bias – duty to ensure that persons should know of the risk of adverse findings being made against them - whether the applicants given sufficient opportunity to adduce material in response that might have deterred adverse findings from being made – whether the report contained findings adverse to the applicants in a sufficiently individual, direct and immediate way to give rise to duty – whether later statements of the Royal Commissioner about the meaning of the report relevant to consideration of actual and apprehended bias

ADMINISTRATIVE LAW – Royal Commission into the building and construction industry – procedures adopted by Royal Commission– whether Royal Commission complied with requirements of procedural fairness  – whether Royal Commissioner displayed actual bias towards the applicants – whether conduct of the Royal Commission gave rise to apprehended bias on the part of the Commissioner – role of Counsel Assisting the Royal Commissioner - whether the applicants given sufficient opportunity to adduce material in response to material adverse to them – alleged restriction of cross-examination and unfair questioning of witnesses

ADMINISTRATIVE LAW – Royal Commissions – role of the Court in reviewing the conduct of Royal Commission

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6

Judiciary Act 1903 (Cth) s 39B

Kingham v Cole [2002] FCA 45 cited

McGuinness v Attorney‑General of Victoria (1940) 63 CLR 73 cited

Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 cited

Mahon v Air New Zealand Ltd [1984] 1 AC 808 cited

Annetts v McCann (1990) 170 CLR 596 referred to

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 considered

Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 190 ALR 402 cited

Kennedy v Lovell [2002] WASCA 21

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 cited

Livesey v New South Wales Bar Association (1983) 157 CLR 288 cited

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 cited

Johnson v Johnson [2000] HCA 48; 201 CLR 488 cited

Re Polites; Ex parte The Hoyts Corporation Pty Limited (1991) 173 CLR 78 cited

Shrubb v Air Pilots’ Guild of Australia (FC) (1979) 40 FLR 374 cited

Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 referred to

Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 referred to

Re JRL: Ex parte CJL (1986) 161 CLR 342 referred to

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 cited

ANDREW FERGUSON (and others according to the schedule of applicants) v TERENCE RHODERIC HUDSON COLE AND THE COMMONWEALTH OF AUSTRALIA

N 912 of 2002

BRANSON J

20 NOVEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicants pay the costs of the second respondent including reserved costs.

REASONS FOR JUDGMENT

INTRODUCTION

1                     By Letters Patent dated 29 August 2001 the Governor-General appointed the first respondent, the Honourable Terence Rhoderic Hudson Cole RFD QC (‘the Commissioner’), to be a “Commissioner” to inquire into and report on certain specified matter in relation to the building and construction industry.  The appointment was expressed by the Letters Patent to be made pursuant to the Constitution, the Royal Commissions Act 1902 (Cth)(‘the Royal Commissions Act’) and other ‘enabling powers’.  The Letters Patent may be understood to constitute the Commissioner as a Royal Commission (‘the Royal Commission’). The Commissioner is required by the Letters Patent to conduct his inquiry ‘as expeditiously as possible’ and to furnish the report of the results of his inquiry and such recommendations as he considers appropriate by no later than 6 December 2002.

2                     Each of the applicants is a member or official, or ex‑member or ex‑official, of the Construction, Forestry, Mining and Energy Union, Construction and General Division, New South Wales Divisional Branch.  The Construction, Forestry, Mining and Energy Union (‘CFMEU’) is an organisation registered under the Workplace Relations Act 1996 (Cth).  The CFMEU is one of a number of organisations that has claimed to have an interest in the subject matter of the Commissioner’s inquiry.  It has not been granted authorisation to appear before the Commission.  However, the Commission’s  hearing database, which is known as the Ringtail Court Book, has been made available to the CFMEU and the CFMEU – NSW Divisional Branch.  Counsel has been granted leave to appear for most of the applicants while they are giving evidence or while evidence adverse to them is being called.  There is no reason to think that the leave granted would not be extended as appropriate to those of the applicants not covered by the existing leave.

3                     The Commissioner has issued practice notes touching on the proposed practices and procedures of the Royal Commission including the conduct of hearings before the Commissioner.  Hearings have been conducted before the Commissioner as part of his inquiry.  The hearings have included hearings held in Sydney in respect of matters pertaining to the building and construction industry in New South Wales (‘NSW hearings’).  Further hearings, including NSW hearings, before the Commissioner are proposed or, at least, were proposed at the time of the hearing of this application.  Each of the applicants has received a letter from Counsel Assisting the Commission advising that he would be the subject of ‘adverse evidence’ to be given before a public hearing of the Royal Commission (see [5] of the Practice Note set out in [13] below).

4                     The NSW hearings commenced on 3 June 2002.  The first phase of the NSW hearings continued for twenty-four hearing days concluding on 5 July 2002.  Approximately 158 witnesses were examined during this period.  On 5 July 2002 the Commissioner issued a direction, which is reproduced in [15] below, requiring Counsel Assisting the Commission to provide to certain persons, corporations and organisations, including the applicants, advice as to adverse findings of fact which might be sought against them.

5                     On 5 August 2002 the Commissioner furnished to the Governor-General a document entitled ‘First Report’ (‘the First Report’).

6                     The second phase of the NSW hearings commenced on 19 August 2002.  It continued for ten hearing days during which approximately seventy-two witnesses were examined.

7                     On 29 August 2002 an application was made to the Commissioner on behalf of thirty‑five of the present applicants.  Subsequently five more of the present applicants were treated as parties to the application to the Commissioner.  The application to the Commissioner was ultimately formulated during the course of a hearing on 2 September 2002, as follows:

‘That the Commissioner disqualify himself from

(1)               making any findings of fact;

(2)               making any findings as to inappropriate or illegal conduct;

(3)               making any reports or recommendations to the Government of the Commonwealth -

in relation to New South Wales which does or may have an adverse impact on the Applicants (or any of them) in their individual or representative capacity, if any, or recommending action prejudicial to the interests of the Applicants (or any one of them) in their individual or representative capacity, if any.’

8                     On 6 September 2002 the Commissioner published reasons for his decision to dismiss the application that had been made to him.  In the meantime, on 30 August 2002 the thirty-five individuals who had initially made the application to the Commissioner instituted this proceeding.  By leave the total number of applicants in this proceeding has subsequently been increased to forty-three.  In effect, the applicants seek from this Court the relief that the majority of them failed to obtain from the Commissioner.  They assert that the Commissioner has shown actual bias towards them or alternatively by his conduct has given rise to a reasonable apprehension that he is biased towards them.  They also assert denials of procedural fairness by reason of the process of inquiry adopted by the Royal Commissioner.

9                     The application to this Court was purportedly made pursuant to s 5, or alternatively s 6, of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) or in the further alternative pursuant to s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’).  The way in which the application, and a later amended application, to this Court are framed is open to criticism, particularly insofar as reliance is placed on ss 5 and 6 of the ADJR Act.  In view of the manner in which the matter was argued and the conclusions which I have reached it is not necessary for these criticisms to be explored.

10                  The Commissioner has filed an appearance in the proceeding and, by his solicitor, has advised that he will abide by any order of the Court save as to costs.  The second respondent has appeared to ensure that the Court has the benefit of a contradictor.

11                  For the reasons set out below I have concluded that the application to this Court should be dismissed.

letters patent

12                  The Letters Patent appointed the Commissioner:

‘to inquire into and report on the following matters in relation to the building and construction industry:

(a)               the nature, extent and effect of any unlawful or otherwise inappropriate industrial or workplace practice or conduct, including, but not limited to:

(i)                 any practice or conduct relating to the Workplace Relations Act 1996, occupational health and safety laws, or other laws relating to workplace relations; and

(ii)               fraud, corruption, collusion or anti‑competitive behaviour, coercion, violence, or inappropriate payments, receipts or benefits; and

(iii)             dictating, limiting or interfering with decisions whether or not to employ or engage persons, or relating to the terms on which they be employed or engaged;

(b)               the nature, extent and effect of any unlawful or otherwise inappropriate practice or conduct relating to:

(i)                 failure to disclose or properly account for financial transactions undertaken by employee or employer organisations or their representatives or associates; or

(ii)               inappropriate management, use or operation of industry funds for training, long service leave, redundancy or superannuation;

(c)               taking into account your findings in relation to the matters referred to in the preceding paragraphs and other relevant matters, any measures, including legislative and administrative changes, to improve practices or conduct in the building and construction industry or to deter unlawful or inappropriate practices or conduct in relation to that industry.

…

AND We direct that you inquire into whether any practice or conduct that might have constituted a breach of any law should be referred to the relevant Commonwealth, State or Territory agency.’

PRACTICE NOTES and directions

13                  As is mentioned above, the Commissioner has issued a number of practice notes.  The first was dated 10 December 2001 (“the First Practice Note”) and provided general guidance as to the practices to be adopted with respect to hearings before the Commissioner.  Paragraphs 4-13 of the First Practice Note provide:

“4.       Subject to the control of the Commission, Counsel Assisting the Commission will determine what witnesses are called, what documents are tendered to the Commission, and in what order they will call and examine witnesses.

5.         The details of evidence to be produced to the Commission will not be published in advance of the hearing at which it is produced and generally will not be opened before it is called.

However, a person who, to the prior knowledge of Counsel Assisting the Commission, will be the subject of adverse evidence given before a public hearing of the Commission will, if practicable, be notified of that fact before that hearing, with such particulars, if any, as are considered appropriate by Counsel Assisting the Commission, or will, if practicable, be notified as soon as reasonably convenient thereafter and provided with a copy of the material portion of the transcript, or such particulars, if any, as are considered appropriate by Counsel Assisting the Commission, and will be given an opportunity to contest that evidence, if the person so requests.

AUTHORISATION TO APPEAR BEFORE THE COMMISSION

6.         Persons may be authorised to appear before the Commission.  That authorisation may be withdrawn by the Commissioner, or made subject to altered or additional limitations or conditions at any time.

7.         Such authorisation to appear entitles the person to whom it is granted to participate in the proceedings of the Commission, subject to the Commission’s control and to such extent as the Commission considers appropriate.  In particular, the Commission may:

(a)         limit the particular topics or issues upon which the person may examine and cross-examine;

(b)         impose time limits upon examination and cross-examination;

(c)          require that submissions be presented in writing only.

8.         Counsel for all the persons given authorisation to appear shall give advance notice of any legal issues which they propose to raise.  Counsel Assisting will likewise advise other counsel if it appears to them that questions of law may arise in particular situations.

APPLICATION FOR WITNESS TO APPEAR BEFORE THE COMMISSION

9.         All witnesses will be called by Counsel Assisting the Commission.  Any person wishing to have evidence of a witness or witnesses placed before the Commission is to notify Senior Counsel Assisting the Commission of the names of all such witnesses, and provide a signed statement of their expected evidence, if possible in the form of a statutory declaration.  Counsel Assisting or Commission staff may interview such witnesses and take further statements from such witnesses, if considered necessary.  It is not necessary that any such interviews or the obtaining of such additional statements occur in the presence of the person, or legal representatives thereof, who sought to have the evidence of such witnesses placed before the Commission.  The orderly conduct of the Commission will be greatly facilitated if this evidence is made available without delay.

10.       Application may be made directly to the Commissioner to call witnesses or place documentary material before the Commission only in the following circumstances:

(a)              Application has been made to Senior Counsel Assisting to call such witness or tender such documents which application has been refused;

(b)              Thereafter, the applicant has given to Senior Counsel Assisting written notice of the reasons why such witnesses’ evidence or documentary material should be placed before the Commission.

(c)               Either:

(i)      Senior Counsel Assisting has reaffirmed his decision not to place the evidence before the Commission; or

(ii)     Two working days have passed since the notice referred to in (b) has been received by the Commission without response from Senior Counsel Assisting.

11.       Where a witness has been introduced to the Commission by a person authorised to appear before the Commission, an attempt will be made to give that person reasonable advance notice of the calling of that witness.

EXAMINATION AND CROSS-EXAMINATION OF WITNESSES

12.       Any witness who is legally represented who has been examined (including cross-examination) by Counsel Assisting the Commission may next be examined by his or her own legal representative and then cross-examined by or on behalf of any person considered by the Commission to have sufficient interest in so doing.  The witness’s own legal representative and finally Counsel Assisting the Commission may re-examine.  At all times, duplication and repetition is to be avoided.

13.       A copy of any document proposed to be put to a witness in cross-examination must be provided to Counsel Assisting the Commission as soon as possible after a decision is made to use the document for this purpose, and in all cases prior to its intended use.’

14                  The second practice note issued by the Commissioner was dated 19 December 2001 (‘the Second Practice Note’).  By the Second Practice Note the Commissioner made certain additional directions as to the conduct of the Royal Commission including directions as to the examination and cross‑examination of witnesses.  Forty‑five members of the CFMEU – Victorian Divisional Branch applied to this Court for relief in respect of the Second Practice Note alleging that for the Commissioner to conduct the Royal Commission in accordance with the provisions of the Second Practice Note would be a breach of procedural fairness.  On 1 February 2002 Heerey J dismissed the application for relief (Kingham v Cole [2002] FCA 45).

15                  By a Direction dated 5 July 2002 (‘the Direction’) the Commissioner made the following directions concerning the hearings held in Sydney between 3 June 2002 and 5 July 2002:

‘1.        By close of business on 26 July 2002, Counsel Assisting provide to the Solicitor to the Commission and to the persons, corporations or organisations listed in the Schedule annexed to this direction, submissions specifying the findings of fact which they contend are available and ought to be found on the basis of evidence presented at the hearings at Sydney which commenced on 3 June 2002 and concluded on 5 July 2002.  Such submissions are to be appropriately referenced to the evidence, including reference to contrary evidence.

Where submissions are not made in respect of the evidence of any person who gave evidence at the said hearings, Counsel Assisting are to include with their submissions the name of each such person.

2.                  By close of business on 16 August 2002, the persons, corporations and organisations listed in the Schedule annexed to this direction, provide to the Solicitor to the Commission their submissions in reply to Counsel Assisting’s submissions on findings of fact, such submissions in reply to specify:

a.      Any disputed findings of fact, and the basis for such dispute; and

b.      Any additional findings of fact sought.

Such submissions in reply are to be appropriately referenced to the evidence, including reference to contrary evidence.

3.                  If Counsel Assisting seeks any adverse finding of fact against any government, organisation, corporation or person which or who is not listed in the Schedule annexed to this direction (hereafter referred to as “second persons”), by close of business on 26 July 2002, Counsel Assisting provide to each of those second persons, the submissions provided by Counsel Assisting pursuant to paragraph 1 above.

4.                  By close of business on 16 August 2002 the second persons provide to the solicitor for the Commission, any submissions in reply they wish to make to Counsel Assisting’s submissions, such submissions in reply to specify:

a.      Any disputed finding of fact and the basis for such dispute; and

b.      Any additional findings of fact sought.

Such submissions are to be appropriately referenced to the evidence, including reference to contrary evidence.’

THE FIRST REPORT

16                  The First Report commences by referring to the Letters Patent dated 29 August 2001 and outlining the task that was thereby given to the Commissioner.  The paragraphs of the First Report of which the applicants complain are the following:

‘3.        It is not appropriate, at this time, for me to address the specific evidence, material and submissions received by the Commission in relation to the conduct of any particular corporation, organisation or person.  That is because the hearings are at present incomplete and all submissions have not yet been received.  Detailed findings of fact will be made in my final report after consideration of all such evidence, material and submissions.

4.                  Nonetheless, after taking 126 days of evidence in Victoria, New South Wales, Queensland, Western Australia and Tasmania, hearing from 445 witnesses, having extensive private consultations the outcome of which is the subject of a public exhibit, and otherwise considering material placed before the Commission, I am satisfied that the material received evidences practices and conduct which exhibit:

(a)       widespread disregard of, or breach of, the enterprise bargaining provisions of the Workplace Relations Act 1996;

(b)       widespread disregard of, or breach of, the freedom of association provisions of the Workplace Relations Act 1996;

(c)        widespread departure from proper standards of occupational health and safety;

(d)       widespread requirement by head contractors for sub-contractors to have union endorsed enterprise bargaining agreements before being permitted to commence work on major projects in state capital central business districts;

e)         widespread requirement for employees of sub-contractors to become members of unions in association with their employer obtaining a union endorsed enterprise bargaining agreement;

(f)        widespread disregard of the terms of enterprise bargaining agreements once entered into;

(g)       widespread application of, and surrender to, inappropriate industrial pressure;

(h)       widespread use of occupational health and safety as an industrial tool;

(i)        widespread making of, and receipt of, inappropriate payments;

(j)        unlawful strikes, and threats of unlawful strikes;

(k)       threatening and intimidatory conduct;

(l)        underpayment of employees’ entitlements;

(m)      disregard of contractual obligations;

(n)       disregard of federal and state codes of practice in the building and construction industry;

(o)        disregard of the rule of law.

5.                  Much of the evidence of such conduct and practices is not in dispute.  Such conduct and practices are not restricted to any one category of participant within the building and construction industry.

6.                  In my final report I will be recommending substantial reform.  Included as one aspect of that reform will be the establishment of a national agency to monitor, investigate and prosecute any breaches of industrial law, the criminal law, and aspects of civil law in relation to the building and construction industry.  The recommendations will include changes to federal laws which, if adopted by government, will require legislative enactment.   The parliamentary cycle is such that there will be delay between the delivery of my recommendations and the placing before, and consideration of, any legislative changes by the Parliament, after consideration of my recommendations by government.

7.                  The Royal Commission has a finite life.  That means that its inquiries and investigations must shortly cease.  It has collected a wealth of information including a great number of probes for investigations and related material.  Not all investigations are complete.  Constraints of time and resources will prevent such incomplete matters being further addressed by the Commission.

8.                  It is important that the uncompleted work of the Commission, in respect of which I will not be in a position to make findings in my final report, not be stockpiled for delayed further investigation and analysis by a future body which may be created by future legislative change.  Continuity of the investigative function in respect of past events is necessary.

9.                  There are two further material factors.  First, many persons gave evidence to the Commission, both publicly and privately, in circumstances where they feared retribution at the conclusion of the Royal Commission.  It is important that there be a continuing body during the winding down and after the termination of the Royal Commission, and prior to any legislative establishment of a new national agency, which can monitor the building and construction industry and act swiftly to deter and, if possible, ensure such retribution does not take place, or if it does, to penalise any such conduct.  Second, between September and November 2002, when the investigative tasks of the Commission will be winding down or concluded, the expiration of pattern bargaining agreements and the negotiation of a new wave of agreements is likely to result in heightened industrial activity.  It is important that there be a body ready to monitor, and capable of monitoring, any such activity to ensure that it occurs within the law and to facilitate compliance and, if appropriate, prosecution, if it does not.

10.              The evidence before me makes plain that the Office of Employment Advocate is insufficiently funded and staffed to undertake the tasks referred to.  It does not have the specialist capacity or experience necessary to monitor the building and construction industry, nor was it designed to give the necessary concentrated focus on the building and construction industry.

11.              These factors mandate establishment of an interim taskforce, established administratively, to continue incomplete investigations, and monitor conduct and enforce industrial, criminal and civil laws pending the consideration by government, and if appropriate, the Parliament, of the legislative changes I will recommend.

12.              I accordingly recommend the establishment of an interim body to monitor conduct, to investigate and, if appropriate, facilitate proceedings to ensure adherence to industrial, criminal and civil laws pending the delivery and consideration of my final report and establishment of any permanent agency.  The interim body should have power to receive material from this Commission, complete investigations and instigate or facilitate any necessary proceedings.

13.              The body should be staffed by a multi-disciplinary group comprising lawyers, building and construction industry investigators, police investigators, financial analysts and general analysts.  The body should have all skills necessary to continue with the investigative work of the Commission and be sufficiently resourced to be able to respond promptly to complaints received, and to investigate matters on its own initiative.  It should have a presence in at least Melbourne, Sydney, Brisbane and Perth.  If possible, the interim body should be operative by 1 September 2002.

14.              This body should be regarded as an interim measure.  The full powers and scope of the national agency or agencies which I will recommend in my final report will be addressed in that report.

15.              If this recommendation is adopted, the Secretary and other officials of the Commission are available to ensure a smooth transition of information, processes and, if appropriate, personnel from the Commission to the interim body.  The Commission has built up contacts, and a level of expertise in investigation and analysis of industrial, financial and other matters related to the building and construction industry which should not be dissipated by delay.”

Reasons of the commissioner

17                  As is mentioned above, on 6 September 2002 the Commissioner published written reasons for his decision to dismiss the application that he disqualify himself from, in effect, making any findings concerning, or making any report or recommendation that might have an adverse impact on, the forty individuals whom he treated as having made the application to him.

18                  The written reasons of the Commissioner note that the Royal Commission is an administrative inquiry established by the executive arm of Government and that its proceedings are not judicial in character.  The reasons acknowledge that, nonetheless, persons who may be adversely affected by findings of the Royal Commission are entitled to natural justice.

19                  Following a careful analysis of the material circumstances common to the applicants, the content of the First Report and the circumstances surrounding its publication, and the submissions of the applicants in support of their contention that the processes of the Royal Commission had not been fair to them in respect of particular issues and generally, the written reasons of the Commissioner at [115] set out the following conclusion:

‘I should disqualify myself from making any findings as to fact, making any findings as to inappropriate or illegal conduct or making any reports or recommendations to the Government of the Commonwealth of Australia in relation to New South Wales which may have an adverse impact on the forty named applicants or any of them either in their individual or representative capacities, only if I am satisfied that a fair‑minded lay observer might, acting objectively, reasonably apprehend that I might not bring an impartial mind to the making of any findings concerning the applicants because of pre‑judgment.  In my view, such a fair‑minded lay observer would not be so satisfied principally because the First Report does not contain any findings concerning any of the applicants either in their personal or representative capacity, or indeed, any findings at all.  A fair‑minded lay observer would not disregard paragraph 3 of the First Report, nor would he translate “evidences” into “establishes”.  Further, a fair‑minded lay observer would not be satisfied that there has been any unfair hearing process denying the applicants or any of them natural justice.  Each applicant who has been the subject of adverse evidence has been given notice of that evidence, has been given the opportunity to cross‑examine in respect of relevant disputed facts, and has been called to give his account of matters in contest.  The procedures implemented to enable performance of the tasks set by the Terms of Reference were upheld as appropriate by Heerey J. in Kingham v Cole.  Since that judgment, additional protection has been given to the applicants and others, by the requirement that Counsel Assisting provide to the applicants and all person who might be adversely affected by any findings which they seek, notice of the proposed findings, and such persons have been given the opportunity to respond to such submissions before I consider the findings I should make.’

CONTENTIONS OF THE APPLICANTS

20                  The applicants were directed to file a Statement of Facts, Issues and Contentions.  The document filed in purported compliance with the direction (‘the Statement’) identifies no issues.  The precise contentions which it is intended to advance are not readily identified.

21                  Paragraph 21 of the Statement is in the following terms:

‘The Applicants have a right to expect that the First Respondent as the Commissioner inquiring into the Building and Construction Industry shall:

            ‘(i)       Hear them with an unbiased mind;

(ii)               Not hear them in such a manner that leads to a reasonable apprehension of bias;

(iii)             Not make findings against their interests without giving them the opportunity to be heard and make submissions on the evidence.’

22                  The applicants assert by the Statement that the First Report ‘applies to the [a]pplicants and their conduct’.  They further assert that the First Report contains ‘a number of conclusions about the conduct of the [a]pplicants’ and that those conclusions ‘are a pre-judgment of the issues and actual bias’.  An invitation to counsel for the applicants to identify the conduct of the applicants to which the First Report applies and about which it contains conclusions and to provide particulars of the issues which the First Report prejudges remains unanswered.  However, senior counsel for the applicants, Mr Rothman SC, indicated that:

‘… it would defy both logic and the proper construction of paragraph 4 to assume that it was intended to deal with conduct other than conduct of the officers of the union.’

The ‘union’ to which he intended to refer, as I understood him, was the CFMEU – NSW Divisional Branch.

23                  It further appears that the applicants contend that the Commissioner has exhibited actual bias or that his conduct has given rise to an apprehension of bias by:

(a)        issuing the First Report before the conclusion of the evidence of the applicants;

(b)               issuing the First Report before hearing any submissions from the applicants;

(c)                adopting a procedure ‘within the Royal Commission’ that is ‘grossly unfair’ to the applicants (no particulars of the ‘grossly unfair’ procedure are provided by the Notice although allegedly ‘unfair’ procedures are identified (see [24] –[25] below);

(d)               displaying “such procedural unfairness to the [a]pplicants that he should disqualify himself or be disqualified in the absence of a decision to disqualify himself”; and

(e)                acting outside the terms of reference contained in the Letters Patent ‘against the interests of the applicants’.

24                  In addition it appears that the applicants contend that the Commissioner has breached a duty to provide procedural fairness to the applicants during the course of the Royal Commission.  At the heart of the applicants’ complaints in this regard is dissatisfaction with the procedures outlined in the First Practice Note.  In particular it is contended that the Commissioner has adopted a process which is unfair to the applicants in that it provides for:

(a)        incomplete and inaccurate openings by Counsel Assisting;

(b)               the gathering of evidence in an unfair way and in particular the use of generalised evidence which is not able to be challenged by the applicants;

(c)                questioning by Counsel Assisting of the applicants as witnesses by reference to documents which were seen by them for the first time during the course of their evidence;

(d)               questioning by Counsel Assisting of the applicants in the course of which Counsel Assisting and the Commissioner adopted pejorative descriptions of the applicants’ conduct;

(e)                questioning by Counsel Assisting of the applicants as witnesses by reference to documents which Counsel Assisting misdescribed and in doing so mislead the witnesses;

(f)                 the leading of employer witnesses through their evidence by Counsel Assisting;

(g)                the leading of employer witnesses through their evidence by the Commissioner;

(h)                the unfair and arbitrary restriction of cross‑examination on behalf of the applicant; and

(i)                  the making of adverse findings, conclusions or statements by the Commissioner in relation to the evidence of the applicants before that evidence was complete.

25                  It is further contended that the Commissioner has adopted a process which is unfair to the applicants in that it fails to provide for:

(a)        the recall of witnesses on application by counsel for the applicants; and

(b)               the calling of probative contrary evidence by Counsel Assisting in the course of the inquiry by the Commissioner.

26                  Paragraphs [39] and [40] of the Statement are in the following terms:

‘The scope and nature of the task required by the Letters Patent, and the time within which the task must be performed, are material factors in demonstrating there has been a denial of natural justice in that insufficient time to prepare and adduce evidence has been allowed to deal with the volume and nature of the evidence adduced by the Royal Commission and Counsel Assisting.

The First Respondent, having embarked on a process that allows cross examination, has adopted a process or practice that is not one that affords procedural fairness to the Applicants.’

27                  The Court’s request for the deficiencies in the Statement to be addressed have largely gone unanswered.  It is unfortunate that in a matter of public importance requiring urgent hearing and determination the case sought to be advanced by the applicants was not more precisely formulated and the real issues requiring determination by the Court more clearly identified.

28                  The submissions of the applicants touched on three broad issues.  The first issue was the proper construction of the Letters Patent.  The second issue was the First Report.  The third issue concerned the matter in which the Royal Commission had been and is being conducted.  The submissions touching on the second and third issues were clearly intended to address the procedural fairness obligations of the Commissioner.  It would seem that the submissions touching on the second issue must also have been intended to address the procedural fairness obligation but exactly how they did so was not identified.

consideration

Proper Construction of the Letter Patent

29                  The applicants contended that the Letters Patent, to the extent that they require the Commissioner to inquire into and report on the nature, extent and effect of any unlawful industrial or workplace conduct, do not authorise the Commissioner to inquire into particular conduct and determine for himself whether that conduct is unlawful.  Rather, the applicants argued, the reference in the Letters Patent to ‘unlawful… industrial or workplace conduct’ is a reference to conduct which has been determined in legal proceedings to be unlawful.

30                  The above contention was advanced as a matter of construction of the Letters Patent. 

31                  Although the applicants issued notices under s 78B of the Judiciary Act 1903 (Cth) they ultimately did not press any arguments arising under the Constitution or involving its interpretation.  It is not open to doubt, at least in this Court, that the Executive Government has power to appoint a commission to inquire into and report on whether any person has been guilty of a crime (McGuinness v Attorney‑General of Victoria (1940) 63 CLR 73; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25).  Of course, a determination of a commission that an individual was guilty of a crime would carry no legal consequences (McGuinness v Attorney‑General of Victoria per Latham CJ at 86, Rich J at 88, Starke J at 90 and Dixon J at 102). 

32                  The relevance in this proceeding of the contention that the Commissioner has acted outside the terms of reference against the interests of the applicants is not clear.  No allegation of a lack of bona fides in this regard was advanced.  However, as the contention can be dealt with briefly I do so. 

33                  In my view, the contention is unsustainable as being inconsistent with the Letters Patent read as a whole.  The Letters Patent require the Commissioner to inquire into and report on ‘the nature, extent and effect of any unlawful or otherwise inappropriate industrial or workplace practice or conduct’.  The task so imposed on the Commissioner would be likely to become frustrated by technicalities were it necessary, as to any apparently relevant industrial or workplace practice or conduct, to identify whether it might have involved the commission of a criminal offence, and if so, whether charges in relation thereto had been laid and prosecuted.  Perhaps more importantly, the direction to the Commissioner to ‘inquire into whether any practice or conduct that might have constituted a breach of any law should be referred to the relevant Commonwealth, State or Territory agency’  would appear to be wholly inconsistent with the contention advanced by the applicant.  The only purpose of any referral to a Commonwealth, State or Territory agency would presumably be to allow consideration to be given to the launching of a prosecution.

Procedural Fairness

34                  It is not in dispute that the rules of natural justice, or procedural fairness as it is now commonly described, impose obligations on the Commissioner acting as a Royal Commission.  Except in one respect there is no dispute as to the content of those obligations.  It is agreed that the content includes:

(a)        a duty to ensure that any person represented at the inquiry who might be affected adversely by a finding should know of the risk of such a finding being made and be given an opportunity to adduce additional material that might deter the Commissioner from making that finding (see Mahon v Air New Zealand Ltd [1984] 1 AC 808 at 820; Annetts v McCann (1990) 170 CLR 596 per Mason CJ, Deane and McHugh JJ at 599) (“the hearing rule”); and

(b)               that the Commissioner neither be biased nor appear to be biased (“the rule against bias”).

35                  The Commonwealth argued that it is no part of the common law of Australia that the rules of natural justice require that a person in the position of a Commissioner make findings based upon material that logically tends to show the existence of facts consistent with those findings.  Reference was made to the observation of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356-357, with which observations Toohey and Gaudron JJ appear generally to have agreed (see at 387), that the approach adopted in, for example, Mahon v Air New Zealand Ltd, to the extent that it reflected the above position ‘has not so far been accepted by this Court’.

36                  However, in Australian Broadcasting Tribunal v Bond at 367 Deane J said:

‘If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. … When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.’

37                  In Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 190 ALR 402 both Gleeson CJ at [65] and Kirby J at [100] cited the above passage from the judgment of Deane J in Australian Broadcasting Tribunal v Bond with apparent approval.

38                  It may be that in 2002 the approach to which Mason CJ referred in Australian Broadcasting Tribunal v Bond (see [35] above) does reflect the common law of Australia.  It is not necessary in the circumstances of this case for a concluded view on the question to be reached. 

The Tests for Actual and Apprehended Bias

39                  The applicants pressed a contention that the Commissioner has exhibited actual bias.  The bias alleged was pre‑judgment bias as opposed to, for example, personal interest bias.  It is therefore necessary for consideration to be given to the test for actual bias on the basis of prejudgment.

40                  In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Gleeson CJ and Gummow J, with whom Hayne J agreed, said at [72]:

‘The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.’

41                  The test with respect to apprehended bias was stated by the High Court in Livesey v New South Wales Bar Association (1983) 157 CLR 288 at 293 as being whether:

‘… the parties or the public might entertain a reasonable apprehension that [the decision‑maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.’

42                  In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 Gaudron and McHugh JJ said:

‘A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.’ (citations omitted)

The First Report

43                  The applicants allege that in producing the First Report, the Commissioner breached the hearing rule in that the First Report contains findings adverse to the applicants and the applicants were not given sufficient opportunity to adduce material that might have deterred the Commissioner from making those findings.  The applicants also allege that the First Report demonstrates actual bias in the Commissioner and gives rise to apprehended bias in the Commissioner.

44                  The applicants’ concerns with respect to the First Report apparently arise principally from the opening words of paragraph 4, and in particular the words ‘I am satisfied that the material received evidences practices and conduct …’.  The applicants argue that the plain and ordinary meaning of the word ‘evidences’ is to make evident or to manifest.

45                  The Commissioner, in his written reasons for his decision at [47] said:

‘The use of the word “evidences” in paragraph 4 was intentional.  It was intended to reinforce the statement in paragraph 3 that, at the time of the report, no findings of fact in respect of material which “evidenced” aspects of practice and conduct had been made nor would be made until the final report.  If I had intended to convey in paragraph 4 that a finding had been or was being made I would have used the word “establishes”.  I did not do so.  Plainly, when material was placed before the Commission as it was in some States and was not put in contest, there is a likelihood that the material will be accepted.  That is not the case where material is in contest.  In those circumstances, it will be necessary for me to make findings of fact after weighing competing submissions.’

46                  The applicants argued that although the Commissioner’s reasons for decision might be relevant to consideration of the question of whether the Commissioner is actually biased against the applicants, his reasons have no relevance to the question of apprehended bias.  It was argued that if an apprehension of bias truly arises then “that apprehension is not dissipated by an exculpatory statement made thereafter”. 

47                  In Johnson v Johnson [2000] HCA 48; 201 CLR 488, a case concerning apprehended bias, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [14] said:

‘There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it.  Clearly, in some cases it can.  So much has been expressly acknowledged in the cases.  No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment.  On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement.  It depends upon the circumstances of the particular case.  The hypothetical observer is no more entitled to make snap judgments than the person under observation.’ (footnote omitted)

48                  In an earlier case of Re Polites; Ex parte The Hoyts Corporation Pty Limited (1991) 173 CLR 78 at 89 the Court (Brennan, Gaudron and McHugh JJ) had observed that in determining whether grounds appeared for reasonably apprehending that Deputy President Polites might not bring an impartial and unprejudicial mind to the resolution of the issues before the Australian Industrial Relations Commission ‘some weight must be given to the views of Mr Deputy President Polites’.

49                  I therefore proceed on the basis that it is appropriate for me to have regard to the written reasons for decision of the Commissioner both on the issue of actual bias and on the issue of apprehended bias.  However, the written reasons are not conclusive of the issues which this Court is required to determine.  They must be considered as part of the total circumstances of the case.

50                  The explanation given by the Commissioner in [47] of his written reasons as to the meaning which he intended the word ‘evidences’ to bear in [4] of the First Report is supported by the content of [3] of the First Report.  Paragraph 3 of the First Report makes it plain that the First Report is not intended to address specific evidence, material or submissions.  A perusal of the First Report reveals that it does not do so.  I reject the submission that the First Report contains findings based on specific evidence, material and submissions received by the Royal Commission concerning the conduct of any organisation or person.

51                  Although the applicants contend that the First Report in its terms applies to the applicants and their conduct I find that it does so, if at all, only indirectly.  I accept the evidence of Andrew Ferguson (‘Mr Ferguson’) that as at December 2001 the New South Wales Branch of the CFMEU had 35,664 members.  It is agreed that 18,810 of those members were at that time financial members of the CFMEU.  I also accept Mr Ferguson’s evidence that:

(a)                the CFMEU has more members in the building and construction industry in New South Wales than any other union; and

(b)               that a substantial amount of the evidence that has been led in the NSW hearings has concerned the CFMEU – NSW Divisional Branch.

On that basis it may be assumed that some of the material that the Commissioner is satisfied ‘evidences’ practices and conduct of the kinds referred to by him in [4] of the Final Report is material touching on the conduct of some of the applicants.  However, as to each individual applicant, it cannot be known whether any of the material touches on his conduct.

52                  The submission of the applicants that the Commissioner has by the First Report made findings that the applicants have engaged in criminal conduct must be rejected.  The First Report identifies no individual either expressly or by implication.  No instance of allegedly criminal conduct is particularised in the First Report.  Indeed the First Report, as [3] of the report states, contains no detailed findings of fact of any kind. 

53                  As is mentioned above, the applicants’ legal representatives did not respond to the Court’s invitation to particularise as to each of the applicants how he was adversely affected by the publication of the First Report.  For this reason I do not know the details of the particular findings which the applicants’ claim are made in the First Report.  However, senior counsel for the applicants submitted that the First Report ‘is a pre‑judgment of material affecting [the applicants’] interests qua their position, both as to reputation and as to [their] position as officers of the union ….’ Again, I understand the ‘union’ referred to by senior counsel to be the CFMEU – NSW Divisional Branch.

54                  It is not in dispute that the First Report was provided by the Commission to the Governor‑General, and thereafter published, before all of the applicants had given evidence and without the applicants being given an opportunity by their counsel to make submissions as to the conclusions that might appropriately be drawn from the evidence and other material that was before the Commission.  I accept that the applicants as a class have an interest in the finding recorded in [4] of the First Report which exceeds the interests of the public at large.  Their special interest is, as Mr Rothman contended, an interest in the industrial sense (see Shrubb v Air Pilots’ Guild of Australia (FC) (1979) 40 FLR 374 at 377).

55                  However, the finding of the Commissioner which is recorded at [4] of the First Report is of a general nature.  It is a finding of satisfaction based upon:

(a)        evidence given in five States (of which New South Wales was one) over 126 days by 445 persons;

(b)        extensive private consultations; and

(c)        other material placed before the Commission.

56                  It is a finding concerning practices and conduct of specified kinds but practices and conduct which are not particularised as to individual incidents or as to individual participants.  The finding could, without disrespect, be summarised as a statement by the Commissioner that he has strong reason to suspect that all is not well in the Australian building and construction industry in the regards specified in subparagraphs (a)‑(o).  Paragraph 5 of the First Report makes it plain that the Commissioner’s concern is not limited to the employee side of the industry but reaches also, at least, to the employer side.

57                  In Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 Lehane J gave consideration to the authorities touching on the common law duty, which exists in the absence of clear manifestation of a contrary statutory intention, to act fairly (in the sense of according procedural fairness) in the making of administrative decisions which affect rights, interests and legitimate expectations.  His Honour at 553–554 observed:

‘There is a clear distinction, and authorities binding on me treat it as an important distinction for these purposes, between decisions affecting the rights or interests of particular individuals and those affecting the interests, indiscriminately, of the members of the public at large or of the members of a section of the public.  Thus in Kioa at 584, immediately following the passage to which I have already referred Mason J, said:

“But the duty does not attach to every decision of an administrative character.  Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way.  Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly.”

…

All of the authorities to which I have referred, however, make it clear that though a decision for which an Act or delegated legislation provides is to be characterised as administrative rather than legislative, nevertheless if it affects the interests of the public, or a section of the public, at large rather than the interests of particular individuals it will, usually at least, be a decision in relation to which no particular individual or body can claim an entitlement to procedural fairness: particularly, an entitlement to be heard, in relation to a proposed decision, before it is made.’

58                  The interest of the applicants, or at least those most readily identified with the CFMEU – NSW Divisional Branch, in the First Report seems to me to be to some extent comparable to the interest which pathologists, patients and medical practitioners had in the recommendation considered by Gummow J in Queensland Medical Laboratory v Blewett (1988) 84 ALR 615.  In that case at 637 his Honour said of the recommendation:

‘It affected the interests of those providing the pathology services, of the patients and their medical advisors for whom the services are provided and of government (that is to say of the Australian community as a whole) in efficient administration of the law and proper disbursement of public moneys.  I believe there is much to be said for the view that the making of a recommendation by the committee and the decision of the Minister to make a determination in accordance with the recommendation of the committee, did not affect the rights, interests and expectations of pathologists, other medical practitioners and patients in a sufficiently individual direct and immediate way as to attract with regard to persons in these groups the duty to act fairly …’ (emphasis added)

59                  In my view, it has not been demonstrated that the Commissioner’s finding affected the interest of any applicant, or the applicants as a group, “in a sufficiently individual direct and immediate way” to give rise to a duty in the Commissioner to afford that applicant, or the applicants generally, an opportunity to adduce additional material in the manner required by the hearing rule.

60                  The applicants’ claim to be entitled to the protection provided by the hearing rule is, in my view, even less strong with respect to [6] – [15] of the First Report.  These paragraphs foreshadow recommendations for administrative and legislative change.  Mr Rothman argued that the recommendations impact on the applicants in their capacity as officers of a State union as the recommendation, if adopted, might lead to Commonwealth legislation which would reduce the sphere of operation of the State union.  He further argued that a successful challenge to the Commissioner’s findings of fact would result in the recommendations falling.  However, although the amended application includes a reference to ‘the State Union’ the union intended to be referred to is not identified.  The Statement (see [20] above) makes no mention of a State union.  The applicant did not give evidence concerning a State union.  The applicants’ claims so far as they were supported by reference to a State union must fail.

61                  In any event, in my view, neither any individual applicant, nor the applicants as a class, is or are sufficiently affected in a personal or political way by the content of paragraphs [6] – [15] of the First Report to give rise to a duty in the Commissioner to comply with the hearing rule.  The recommendations relate to the establishment of institutions of government which will impact on the applicants, if at all, only tangentially.  Even if there were material before me that identified the applicants with a State union and demonstrated that acceptance of the recommendations and foreshadowed recommendations would reduce the sphere of operation of that union, I would not take a different view.

62                  I conclude that the Commissioner was under no duty to afford the applicants, or any of them, an opportunity to adduce additional material that might have deterred the Commissioner from making the findings and recommendations set out in the First Report before making those findings and recommendations.

63                  I turn to consider whether the conclusions contained in the First Report ‘are a pre-judgment of the issues and actual bias’ (see [22] above).  As is mentioned above, I am required to undertake this exercise without having the benefit of any particularisation of the issues intended to be referred to by the applicants.  However, the relevant issues must, it seems to me, be the issues or some of the issues to be determined by the Royal Commission. 

64                  The Letter Patent (see [12] above) appoints the Commissioner to, amongst other things, inquire into and report on the nature, extent and effect of any unlawful or otherwise inappropriate industrial or workplace conduct or practice in the building and construction industry.  The Commissioner’s inquiry is thus intended to be a wide ranging one and his final report intended to be formulated, at least in part, at a level of generality.  The Commissioner is not engaged in an exercise of determining issues between parties to litigation.  He is free, at the level of particular instances of industrial or workplace conduct or practice, to inquire into them or not to inquire into them, as he considers appropriate.  For these reasons the ‘issues’ which will be determined by the Commissioner in his final report, other than issues of a general nature, cannot now be identified.

65                  Having regard to the nature and the extent of the inquiries undertaken by the Commissioner as at the date of the First Report, it would be unrealistic to hold an expectation that the Commissioner would not by that time have gained some general appreciation of whether or not there were unlawful or otherwise inappropriate industrial or workplace practices and conduct in the building and construction industry.  He can also be expected to have formed at least preliminary views as to the measures that would be appropriate to improve practices and conduct in the industry and to deter unlawful and inappropriate practices.  Indeed, the task of providing to the Governor‑General by no later than 6 December 2002 the report required by the Letters Patent would be virtually overwhelming had he not by 5 August 2002 formed some such preliminary views which could give added focus to his ongoing inquiries and his consideration of possible legislative and administrative changes.

66                  However, as is made clear above (see [50]), the First Report contains no detailed findings of fact of any kind.  The Commissioner has not by the First Report published any conclusions which are directly referrable to any of the applicants.  The foreshadowed recommendations for legislative and administrative change are expressed with considerable generality.  The language of the First Report is measured in tone.

67                  In Minister for Immigration and Multicultural Affairs v Jia Legeng Gleeson CJ and Gummow J, with whom Hayne J agreed, at [71] – [72] rejected the argument that all that was necessary to constitute bias was an inclination or predisposition of mind.  Their Honour’s observed:

‘Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.’

68                  In my view, the First Report, having regard to the circumstances surrounding publication, provides no basis for a finding that the Commissioner is so committed to any conclusion already formed as to be incapable of altering it, whatever additional material may be presented (see [40] above).  In particular the First Report provides no basis for a finding that the Commissioner is so committed to conclusions already formed concerning the applicants, or touching on their respective interests, as not to be open to persuasion by their evidence, or by submissions advanced on their behalves.

69                  I turn to the issue of apprehended bias.  In Re JRL: Ex parte CJL (1986) 161 CLR 342 at 352 Mason J observed with respect to apprehended bias in a judicial officer:

‘It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.  There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.  But that does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.’

The significance of Mason J using the word ‘will’ rather than ‘may’ or ‘might’ in the above passage can for present purposes be put to one side.

70                  As I have already stated, the Commissioner is not acting judicially to determine issues between parties.  He is conducting an inquiry of a general nature at the request of the Executive Government.  The publication of the First Report may well have generated an expectation that the Commissioner’s final report will make findings and recommendations of a particular kind.  However, as already mentioned, the language of the First Report is measured in tone.  The First Report contains no findings of fact.  The views expressed in it are of a general nature.  The First Report does not single out the building and construction industry in New South Wales or any of the applicants for particular attention. 

71                  I do not consider that by the publication of the First Report the Commissioner has become so identified with, or apparently committed to, a view concerning the building and construction industry in New South Wales that it could be reasonably apprehended that he might not able to address issues touching on that aspect of the national industry impartially and with an unprejudiced mind within the meaning of the authorities.  In my view, nothing in the First Report, or the circumstances surrounding its publication, is such as to cause the applicants or the public a reasonable apprehension that the Commissioner might be so prejudiced in favour of a conclusion or conclusions already formed that he will not alter that conclusion or those conclusions irrespective of the evidence of the applicants or the submissions advanced on their behalves.

72                  The application for relief so far as it is dependent on the First Report must fail.

The Conduct of the Royal Commission Generally

73                  It appears that the applicants contend that the scope and nature of the task committed to the Commissioner by the Letters Patent is such that a denial of procedural fairness to them is inevitable (see [26] above).  This contention faces two principal difficulties.  First, it anticipates the content of the final report of the Royal Commission.  Secondly, it overlooks the steps taken by the Commissioner to ensure that the applicants have notice of findings adverse to them that might be made.

74                  Where the Executive Government has a need for information it has the option of seeking to obtain that information by one or more of various means.  The establishment of a Royal Commission is one way in which the Executive Government may obtain information.  In this case the Royal Commission is charged with making inquiries directed to the gathering of information both to ascertain matters of fact and to provide a basis for the formulation of policy.  Indeed, the Commissioner is himself charged with identifying and reporting on legislative and administrative measures to achieve reform within the building and construction industry.  The time provided to the Commissioner to provide the report required of him is a matter for the Executive Government.  The nature and extent of the Commissioner’s inquiries and the detail of the measures recommended by him will be influenced by the time frame within which he is required to work and the resources provided to him.  These are not matters with which the law is directly concerned.  However, the law does have a role to play where, because of the time or other restraints imposed on the Royal Commission, the Royal Commission acts in a way that destroys, defeats or prejudices a person’s rights, interests or legitimate expectations without according that person procedural fairness (see Annetts v McCann per Mason CJ, Deane and McHugh JJ at 598).

75                  The role which the applicants may legitimately expect to play by their counsel during the course of the Royal Commission is a limited one.  In Annetts v McCann at 601, Mason CJ, Deane and McHugh JJ said:

“Counsel for the appellants argued that, as he could not know what findings the Coroner would make until the case was over, he was entitled to address on the whole of the evidence.  The conclusion does not follow from the argument.  The issues in respect of which findings adverse to the appellants may possibly be made can be isolated and, once isolated, counsel for the appellants is not entitled to address the Coroner on matters which are not relevant to those issues.  At the same time, the Coroner has a responsibility to define the issues in respect of which there exists a possibility that he may make findings adverse to the appellants.  By defining those issues he can effectively assist the identification of the topics on which counsel can relevantly and usefully address and limit the scope of that address.”

76                  In this case the Commissioner has acted to define the issues in respect of which there exists a possibility that he may make findings adverse to the applicants.  The Commissioner set out in [34] of his reasons for decision the procedures adopted within the Royal Commission in respect of persons who may be adversely affected by any findings of the Commissioner.  I did not understand the applicants to challenge the accuracy of the content of that paragraph.  It reads as follows:

‘To ensure that persons who may be adversely affected by any findings which I might make in the final report are accorded natural justice, the following procedures have been put in place:

(i)                 Statements of evidence containing adverse material are placed on Courtbook being an electronic filing system for evidence.  Access to Courtbook is given to any party who might be adversely affected.

(ii)               Practice Notes issued by the Commissioner require that material to be placed on Courtbook in advance of the hearings, normally two weeks in advance.

(iii)             The solicitors for the Commission give to the person who might be affected notice of adverse evidence thus drawing their attention to the material which might be adverse to them.

(iv)             Lawyers for persons who might be adversely affected are uniformly given a right of appearance whilst any evidence is being given by such persons or whilst any evidence which might be adverse to such persons is being called.

(v)               If the person potentially adversely affected wishes to deny the material alleged against him, he or she is required to file a statement specifying the factual matters which are disputed by that person.  In this way, an issue is raised for determination.  In view of the enormous bulk of material called in  hearings around Australia, any alternative system would not be practicable having regard to the obligation to report within a limited time, and the dimension of the material required to be investigated.

(vi)             In advance of the person making the adverse allegation being called, Counsel seeking to cross‑examine on behalf of the party potentially affected is required to indicate the areas of conflict by reference to the paragraphs in the disputing statements.

(vii)           In advance of the person giving the potentially adverse evidence being called for cross‑examinations, I publish a ruling indicating the areas in which cross‑examination will be permitted.  I do not give reasons in respect of each ruling on each paragraph of the contesting statements, for that would not be practicable, but the principles which have generally guided me are:

(a)        If there is a disputed issue of fact relevant to a matter which I regard as material to any issue I must determine, I allow cross‑examination upon it.

(b)        If a person gives evidence on oath of an adverse matter, which evidence is not denied, I do not allow cross‑examination.  That is because no issue is raised regarding the evidence.

(c)        If the disputing evidence is a matter of comment, as distinct from raising a factual conflict, I do not allow cross‑examination.

(d)        If a person gives evidence on oath of a fact, and the contestant states that he has no recollection of the alleged fact, I do not allow cross‑examination, unless there are surrounding circumstances casting doubt upon the veracity of the evidence alleged.  That is because there is no sensible basis upon which a cross‑examiner can contest the evidence.

(e)        Overriding all considerations, if there are grave allegations against a person which may be diminished or eliminated by an attack on the credit of the witness giving the evidence, I allow cross‑examination.’

See also the First Practice Note and the Direction.

77                  The applicants argued that the burden imposed on their legal representatives by adherence to these procedures is excessive in the circumstances.  I am unable on the evidence before me to make a finding that this is so.  There is no detailed evidence as to the resources which are, or could reasonably be made, available to the applicants’ legal representatives.  More importantly, however, the applicants have not demonstrated that reasonable requests addressed to the Commissioner for modification of the standard procedures, particularly as to time, have met or will be met with refusal.  As Mason CJ, Dawson, Toohey and Gaudron JJ observed in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578, where a decision making process involves different steps or stages the issue is whether ‘the decision‑making process, viewed in its entirety, entails procedural fairness’ (quoting South Australia v O’Shea (1987) 163 CLR 378 at 389 per Mason J). 

78                  The applicants assert that the Commissioner has unfairly and arbitrarily restricted cross‑examination on behalf of the applicants.  They further assert that evidence has been gathered and used unfairly and that witnesses have been questioned unfairly.  One difficulty facing the applicants concerning assertions of this kind is that the final report of the Commissioner is not yet available.  It is not known precisely what findings will be made by it.  It may well be that issues that assumed importance, or apparent importance, during the course of hearings will be found by the Commissioner to be without significance so far as his final report is concerned.  Having regard to the procedure adopted within the Royal Commission in respect of persons who may be adversely affected by findings of the Commissioner, I am not satisfied that the Commissioner’s final report will include findings that will destroy, defeat or prejudice the rights, interests or legitimate expectations of the applicants, or any of them of which the applicants have not been or will not be put on notice and given an opportunity to adduce relevant material that might deter the Commissioner from making the findings.

79                  The applicants have sought to demonstrate that the conduct of the Commissioner and of Counsel Assisting the Commission during the course of the Royal Commission has already been such as to demonstrate actual bias towards them or such as to give rise to a reasonable apprehension of bias towards them (see [24] – [26] above).  So far as the applicants rely on the general procedures adopted within the Royal Commission they have, in my view, plainly failed to establish this aspect of their case.

80                  So far as the applicants place reliance on specific instances of conduct, I also conclude that they have failed to make out a case of actual or apprehended bias.  I do not consider it necessary to rehearse each of the specific instances of conduct relied upon.  In my view, seen in the context of the conduct of the Royal Commission as a whole, they are of limited significance.  No basis has been identified upon which the conduct of Counsel Assisting the Commission is to be attributed to the Commissioner.  Subject to limited exceptions, the remaining instances of conduct relied upon relate to the applicants, whether considered individually or as a group, only indirectly.  It has not been shown that they, or any of them, are likely to be material to the findings that will be contained in the Commissioner’s final report.

81                  It should, in my view, be stressed that it is not the role of this or any Court to oversee the day to day conduct of a Royal Commission so as to ensure, for example, that the openings of Counsel Assisting are complete and accurate, that evidence is fairly gathered and used, that individual witnesses are questioned fairly and that cross‑examination is not restricted unfairly or arbitrarily.  No inference should be drawn from this statement that I am satisfied that the criticisms made by the applicants of the specific instances of conduct referred to above are justified.  Taken individually the criticisms are insufficiently significant to be relevant to the issues before this Court.  Cumulatively, even if made out, they would be inadequate to establish that the applicants, or any of them, have or has been denied procedural fairness.  I have not found it necessary to determine whether, as the second respondent contended, the applicants have waived their rights, if any, in relation to the conduct of which they complain.

conclusions

82                  For the reasons given above the application pursuant to s 5 of the ADJR Act for review of the decisions of the Commissioner to:

‘(i)       refuse to disqualify himself upon an application for disqualification made by the Applicants on the basis of apprehended bias;

(ii)        fail to give the Applicants, or any one of them, the sufficient ability to challenge and/or explain allegations made against them;

(iii)      fail to have evidence put fairly to the Applicants or any one of them;

(iv)       fail to provide the Applicants with procedural fairness before the Commission; and

(v)        further and in the alternative to (ii), (iii) and (iv) above, failure to ensure that contrary or exculpatory evidence is gathered and presented to the Commission by counsel assisting or made available to all parties affected thereby’

must be dismissed.  Similarly, the application under s 6 of the ADJR Act to review the conduct, or the proposed conduct, of the Commissioner similarly described must also be dismissed.

83                  Also for the reasons given above applications made under s 39B of the Judiciary Act for a:

‘… declaration that the First Respondent has acted with bias, or in the alternative has displayed apprehended bias, or acted in such a way that the Applicants entertain a reasonable apprehension that the First Respondent will not bring an impartial and unprejudiced mind to the issues’; and a

‘… declaration that the First Respondent has not provided a fair process for the Applicants’

must be dismissed.  The claim for consequential relief under s 39B of the Judiciary Act must also fail.

84                  The application will be dismissed with costs.

Associate:

Dated:              20 November 2002

SCHEDULE OF APPLICANTS