Federal Court of Australia

TESA Group Pty Ltd v Mining and Energy Union [2025] FCA 922

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ amended originating application be dismissed.

2.    Any application for costs, together with any evidence and submissions (of not more than four pages) be filed and served by 4:00pm on 18 August 2025.

3.    Any affidavit(s) and submissions (of not more than four pages) in response be filed and served by 4:00pm on 25 August 2025.

4.    If no application for costs is made within the time frame fixed by order 2 above, there be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER J:

1    The applicants apply, by their amended application, for judicial review of (and for writs in certiorari quashing) two decisions made by Deputy President Butler of the Fair Work Commission to dismiss two applications made by them for recusal (in Fair Work Commission proceedings LH2024/22, LH2024/14), on account of a reasonable apprehension of bias. The first decision dismissing the application for recusal was delivered as revised from transcript (delivered ex tempore on 18 March 2025) by the Deputy President on 19 March 2025: Mining and Energy Union [2025] FWC 779 (LH2024/14). The second decision dismissing the second application for recusal was delivered on the papers on 28 March 2025: Application by Mining and Energy Union re Maules Creek [2025] FWC 880 (LH2024/22). On 6 June 2025, the Deputy President made a regulated labour hire arrangement order in LH2024/20; LH2024/21; LH2024/22: Applications by the Mining and Energy Union re Maules Creek Coal Pty Ltd [2025] FWC 1499. On 31 July 2025, the Deputy President also made a regulated labour hire arrangement order in LH2024/14, LH2024/15: Applications by the Mining and Energy Union re Mangoola Open Cut Coal Mining Operation [2025] FWC 2190.

2    Deputy President Butler had been allocated to hear and determine two applications for a regulated labour hire arrangement order (RLHAO), by operation of a new provision, s 306A under Part 2-7A of the Fair Work Act 2009 (Cth) to bind, amongst others, the applicants. These entities are wholly owned by Programmed Skilled Workforce Pty Ltd, such that its interests are affected by the applications. The applications were made by the first respondent, the Mining and Energy Union.

3    Each of Mangoola Coal Operations Pty Ltd, the second respondent, Maules Creek Coal Pty Limited, the third respondent, the Fair Work Commission, the fourth respondent, filed submitting notices that it submitted to any order the Court may make in the proceeding and did not wish to be heard on the question of costs.

4    It may be accepted that, if an allegation of apprehended bias is made out, it constitutes a breach of procedural fairness and constitutes jurisdictional error: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [54] per Nettle and Gordon JJ. This application is not an appeal from the Deputy President’s reasons but rather a challenge to the Deputy President’s exercise of jurisdiction in the circumstances. Accordingly, the issue for determination is whether a fair-minded lay observer might reasonably apprehend that the Deputy President might not bring an impartial mind to the resolution of the question the Deputy President was required to decide.

5    For the following reasons that application must fail.

Jurisdiction

6    The applicants sought relief under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), ss 562 and 563 of the FW Act, and ss 21 to 23 of the Federal Court of Australia Act 1976 (Cth).

7    Section 39B(1A)(c) of the Judiciary Act 1903 (Cth) is given in the following terms.

(1A)     The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

    …

(c)     arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

8    Sections 562 and 563 of the FW Act 2009 (Cth) are given in the following terms:

562     Conferring jurisdiction on the Federal Court

Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.

563    Exercising jurisdiction in the Fair Work Division of the Federal Court

The jurisdiction conferred on the Federal Court under section 562 is to be exercised in the Fair Work Division of the Federal Court if:

(a)     an application is made to the Federal Court under this Act; or

(b)     a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or

(c)     a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

(d)     an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

(e)     a prosecution is instituted in the Federal Court under this Act; or

(f)     an appeal is instituted in the Federal Court from a judgment of the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory in a matter arising under this Act; or

(g)     proceedings in relation to a matter arising under this Act are transferred to the Federal Court from the Federal Circuit and Family Court of Australia (Division 2); or

(h)     the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act; or

(i)     the President refers, under section 608 of this Act, a question of law to the Federal Court; or

(j)     the High Court remits a matter arising under this Act to the Federal Court.

9    Sections 21 to 23 of the Federal Court of Australia Act 1976 (Cth) are given in the following terms:

21     Declarations of right

(1)     The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

(2)     A suit is not open to objection on the ground that a declaratory order only is sought.

22     Determination of matter completely and finally

The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

23     Making of orders and issue of writs

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

10    The applicants have sought writs of certiorari to quash the decisions to dismiss the recusal applications and the substantive decisions made.

11    The Court has jurisdiction because the subject matter of the dispute: an application for recusal for apprehended bias arising with respect to an application under s 306E of the FW Act, is clearly a matter arising under the FW Act within the meaning of s 562. This is because the subject matter is whether the Commission in exercising its executive function under the FW Act did so within the limits of its jurisdiction in deciding that any decision on the substantive application would not be attended by bias.

The question of Parliamentary privilege does not need to be decided

12    As will be evident from the reasoning below, the Court received into evidence, extracts from Hansard, relied upon by the applicants to support their contention as to apprehended bias. These extracts were the subject of successful objection below (and not admitted into evidence) on the basis that they purportedly fell within s 16(3)(c) of the Parliamentary Privileges Act 1987 (Cth). For the reasons which follow, I am of the view that the applicants cannot make out their claim of apprehended bias, whether the Hansard references are taken into account or not, and therefore there is no need for me to resolve any conflict within the authorities about whether the prohibition arises in the context of apprehended bias proceedings. However, I have briefly, set out at the end of my reasons, why I am of the view that, the occasion contemplated by s 16(3)(c) does not arise in this case.

Organising principles

13    There was no real dispute between the parties as to the applicable test and relevant organising principles for determining whether there is an occasion of apprehended bias.

14    The applicable test was articulated by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ:

6    Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

(Emphasis added.)

15    The application of the apprehension of bias principle requires that two steps be taken, identified by Gleeson CJ, McHugh, Gummow and Hayne JJ at [8] of Ebner:

8    The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. …

16    The criteria in Ebner has been reiterated, recently, in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 279 CLR 148 at [38] per Kiefel CJ and Gageler J, and helpfully elucidated in the following way: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

17    This “double might” test is one of possibility (real and not remote), rather than probability: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [18] per Kiefel CJ and Gageler J.

18    It is important to note that “[i]t is an open, and not an empty, mind that must be kept”: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779; 169 ALD 579 at [102] per Allsop CJ.

19    It is the Court’s view of the public’s view (that of the fair-minded lay observer), and not the Court’s own view, which is determinative: QYFM at [45] per Kiefel CJ and Gageler J:

45    The pivotal stage in the analysis on this strand of the appellant's argument lies in the assessment of the reasonableness, in the circumstances of the case, of an apprehension of that kind from the perspective of a fair-minded lay observer. In undertaking that assessment, “it is the court's view of the public's view, not the court's own view, which is determinative”. The hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court's analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system. The construct provides the “standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system”.

20    The hypothetical observer is neither complacent nor unduly sensitive or suspicious. They are cognisant of human frailty. However, the hypothetical observer is not so abstracted and dispassionate so as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias, referring to QYFM at [47]–[49]:

47    Being “fair-minded”, the observer “is neither complacent nor unduly sensitive or suspicious”. Yet the observer is cognisant of “human frailty” and is all too aware of the reality that the judge is human. The observer understands that “information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making”.

48     Being “lay”, the observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge”. Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard “the irrelevant, the immaterial and the prejudicial” and to discharge the judicial function uninfluenced by past professional relationships, “the public perception of the judiciary is not advanced by attributing to the … observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case”. This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.

49     Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias. The observer can be taken to appreciate that a party – especially an individual, and especially a non-citizen facing deportation on the basis of his conviction – might understandably experience a justifiable sense of disquiet in seeing his former prosecutor turn up as one of his judges.

Why the objection to jurisdiction on the basis of apprehended bias failed

21    The applicants submitted that, as to the first step undertaken in determining whether a finding of apprehended bias should lie, the hypothetical lay observer in this proceeding should be taken to be informed of the following:

(a)    In her former role as a politician, the Deputy President endorsed, and campaigned for, the Secure Jobs Australian Plan and the same-job-same-pay principle expressed in it. That is so because she was member of the shadow cabinet that endorsed the policy, and is also evident from her prosecution of the policy on the floor of the House of Representatives.

(b)    The Plan singles out coalmine workers as a cohort of workers that were to benefit from that policy.

(c)    She is now sitting on two applications under the statutory enactment of that policy, and these applications concern coalmine workers.

(d)    The applications allege, and it is not disputed, that coal mine workers that stand to benefit from the two applications are being paid wages that are 35% less when compared to the employees that are employed by the operators of two mines.

(e)    This is analogous to the situation the Deputy President characterised as being a “rort” on the floor of Parliament.

(f)    A “rort” is conventionally understood to be a fraudulent or dishonest practice.

22    It was submitted that the observer would readily take exception with the applicants in this proceeding having to appear before a decision-maker who has characterised “equivalent pay arrangements between employer and employee as fraudulent or dishonest”.

23    As to the second step, it was submitted that the logical connection between the factors and the apprehended deviation from deciding that question on its merits, is that by virtue of the decision-maker having to undertake a “value laden analysis” involving notions of fairness and reasonableness in determining the application under s 306E of the FW Act, there would be understandable “disquiet”, given the Deputy President had already articulated that “coalmine workers” should benefit from what a RLHAO can provide, and “has already articulated analogous situations to be fraudulent and dishonest” such that the Deputy President might not bring an impartial mind to the application before her.

24    Section 306E(2) and (8) of the FW Act provide:

306E     FWC may make a regulated labour hire arrangement order

Regulated labour hire arrangement order

…

(2)     Despite subsection (1), the FWC must not make the order if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to any matters in subsection (8) in relation to which submissions have been made.

…

Matters to be considered if submissions are made

(8)     For the purposes of subsection (2), the matters are as follows:

(a)     the pay arrangements that apply to employees of the regulated host (or related bodies corporate of the regulated host) and the regulated employees, including in relation to:

(i)     whether the host employment instrument applies only to a particular class or group of employees; and

(ii)     whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employees; and

(iii)     the rate of pay that would be payable to the regulated employees if the order were made;

(c)     the history of industrial arrangements applying to the regulated host and the employer;

(d)     the relationship between the regulated host and the employer, including whether they are related bodies corporate or engaged in a joint venture or common enterprise;

(da)     if the performance of the work is or will be wholly or principally for the benefit of a joint venture or common enterprise engaged in by the regulated host and one or more other persons:

(i)     the nature of the regulated host’s interests in the joint venture or common enterprise; and

(ii)     the pay arrangements that apply to employees of any of the other persons engaged in the joint venture or common enterprise (or related bodies corporate of those other persons);

(e)     the terms and nature of the arrangement under which the work will be performed, including:

(i)     the period for which the arrangement operates or will operate; and

(ii)     the location of the work being performed or to be performed under the arrangement; and

(iii)     the industry in which the regulated host and the employer operate; and

(iv)     the number of employees of the employer performing work, or who are to perform work, for the regulated host under the arrangement;

(f)     any other matter the FWC considers relevant.

25    In order to make good each of these assertions, the applicants relied on certain undisputed facts, the content of the purported Plan and upon two extracts from Hansard. The applicants put their case of logical connection on two bases at hearing. The first argument was said to be that, the lay observer, so informed of the Deputy President’s “prosecution” or endorsement of the Plan and the same-job-same-pay principle expressed in it, and, of the Deputy President’s comments on the floor of the House of Representatives, the logical connection between those circumstances and the apprehension of bias is that of the Deputy President having “previously disclosed a predisposition to the question to be applied vis-à-vis coal mine workers.” The alternative case was put on the endorsement of the policy alone.

26    In addition, the applicants relied upon the fact that the Deputy President was a member of the House of Representatives from 2014 to 2022, representing the seat of Griffith for the Australian Labor Party. In 2021, the Deputy President held the position of Shadow Minister for the Environment and Water, and as such, was a member of the shadow cabinet of the ALP.

27    On 15 November 2021, this shadow cabinet published a policy titled the Plan. This policy set out a number of commitments that a Labor government would provide for if it formed a government at the next federal election.

28    In its published form, the purported Plan promised that “[a] labor government will uphold the principle that if you work the same job, you should get the same pay.” More particularly, it singled out coal mine workers as a class of workers who would benefit from that principle, as follows:

coal mine workers employed through labour hire … work side by side with directly employed permanent full-time workers, doing the same work for the same hours, on the same roster with the same skills – but being paid around 30-40 percent less.

29    The applicants advanced that, due to cabinet solidarity, upon which this Court could take judicial notice, the Deputy President was conventionally bound by this policy. The applicants referred to Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 16, where the Court refers to the existence of the practices of cabinet secrecy and collective responsibility. The applicants took the Court to 17 of the decision where it was said that:

There was, he said, a feeling that those working together to guide national affairs ought either to be in sufficient agreement to give genuine efficacy to collective decisions, despite differences at the formative stage, or should resign. The doctrine, of course, lies in the field of convention and conventions on one view are no more than generally accepted political practices with a record of successful application or precedent.

30    It was said that judicial notice can be taken of cabinets and their practices. The Court was being asked to accept that, in Australian Government, the opposition is described as a shadow cabinet, and they follow the same principles of collective responsibility and secrecy as the sitting Government. Although it was noted that there has been no judicial consideration of the issue. It was submitted that, these are conventions by principles of law, and they are conventions well established in our government such that they are “notorious”.

31    It was put against the applicants that, this principle of shadow cabinet solidarity tends against accepting that the lay observer would apprehend bias on the part of the Deputy President, as it tends to suggest that she was following what she was required to do as required by a convention, rather than by personal motivation or belief.

32    Furthermore, it was submitted that not only was the Deputy President “conventionally bound” as a cabinet member but that “she actively prosecuted it” in Parliament. In a sitting of the House of Representatives on 26 May 2021, she posed the following question to the Prime Minister:

My question is to the Prime Minister. These pay slips are from two men who work at the same abattoir and to the same job, for the same hours, on the same shift, in the same room. One works for the company which runs the abattoir, and the other is a labour hire casual. The labour hire worker gets $500 less per week. Why does the Morrison government continue to protect this rort that drives wages down?

33    On 23 February 2021, the Deputy President when debating the passage of an industrial relations Bill, also made the following comments about two coalminers, “Ron and Simon”:

I mentioned the mining sector. This is a sector that is faced with significant change—obviously workplace health and safety concerns, but also the disruptive impact of automation such that it's very unclear to a lot of workers what their jobs will be in the future. It's an industry that's also facing rampant casualisation and labour hire, forms of work that do not provide the same security that permanent work does. When our leader, Anthony Albanese, gave a speech in Brisbane recently in my electorate of Griffith to talk about security at work, he talked about two coalminers, Ron and Simon. These are guys who work side by side doing the same job, but one is on labour hire and one is permanent, and their pay difference is about 20 per cent.

This isn't the Australia that we want to live in, where there's insecurity at work and where people who are doing the same job aren't getting the same pay. That's not the sort of country we should be striving to be.

34    In the proceedings in the Commission, it was submitted that the Deputy President was deciding on two applications under the statutory embodiment of her then-shadow Cabinet’s same-job-same-pay policy. The two applications concern coal mine workers such as “Ron and Simon”, being the category of worker singled out in the Plan itself. The applications allege, and it is not disputed, that coal mine workers that stand to benefit from the two applications are being paid wages that are between 30%–40% less when compared to the employees that are employed by the operators of two mines. This is analogous to “Ron and Simon[’s]” situation, and is what the Deputy President characterised as being a “rort”.

35    As to the reasonableness of the apprehension that the Deputy President might decide the RLHAO other than on its merits, I note the following.

36    Contrary, to the applicants’ submission, for the reasons which follow, the fair-minded lay observer would not infer, from all the circumstances, that the Deputy President “endorsed and campaigned for the Secure Jobs Australian Plan”, “prosecuted on the floor of the Parliament the same-job same pay principle expressed in it” or indeed (as it was asserted at hearing, without foundation) “published” that Plan.

37    To the extent that it was asserted that the lay observer would deduce that the Deputy President took any active steps with respect to the Plan, it was said to arise by virtue of her position on the shadow cabinet, a speech in Parliament in February 2021 and a question asked in Parliament in May 2021. It was submitted that the Deputy President was, by hearing and determining the RLHAO, sitting in judgment over the statutory embodiment of her own policy. That policy singled out the Union’s members as the benefactor of it. The Deputy President, by contrast, characterised the business practices of the applicants as fraudulent, dishonest, and reflective of “not the sort of country we should be striving to be.” I reject that the fair-minded lay observer would so characterise the Deputy President’s conduct.

38    Critically, the hypothetical observer is appropriately informed and capable of distinguishing between the personal views of a Member of Parliament and views expressed, on the floor of the Parliament, as being representative of those of the constituents of a member of Parliament and of a political party, depending upon all the circumstances in which those views were expressed. None of the factors identified might reasonably lead the fair-minded lay observer to conclude that the Deputy President held any of the views she espoused personally.

39    As to the Plan, the informed observer would be taken to have known that it was published on the then opposition leader, Anthony Albanese’s website and described as “Labor” policy in November 2021.

40    The fair-minded lay observer could not be taken to have understood that, by virtue of the Deputy President being a shadow cabinet member, she was required to follow “cabinet solidarity”. None of the authorities I was taken to were of assistance. In any event, even if such an observer could take account of “cabinet solidarity” it would only go against the applicants’ case. It would establish, in the mind of the fair-minded lay observer, that any purported support for the Plan was by virtue of the Deputy President’s membership of the cabinet, under compulsion and from which nothing either way could be inferred as to her actual views.

41    I do not accept that the observer could be taken to understand that the current Part 2-7A of the FW Act constitutes the “statutory embodiment” of that former Plan. Although the Plan might be accepted to have borne out the present legislative scheme, it is clearly contemplated that the scheme is designed to operate by way of application and determination by a specialised Tribunal. The scheme does not constitute a guarantee of the same-work-same-pay principle of the kind espoused in the Plan. It is clear from the terms of Part 2-7A that there are a number of matters that require the Commission to be satisfied of, including as to whether it is not fair and reasonable in all the circumstances: s 306E(2). If the Deputy President is taken to have supported this scheme by the hypothetical lay observer by operation of some principle of shadow cabinet solidarity or otherwise, then, it also seems to follow she would be taken to have supported the scheme as it was designed to operate in applications being determined on their merits by independent adjudication.

42    To this end, the applicants’ reliance upon principles of shadow cabinet were misconceived. The submission was not squarely put that the lay observer would apprehend such a principle of shadow cabinet. Instead, the argument ran that it was for the Court to accept the existence of the principle of shadow cabinet on judicial notice. This submission misconceives the proper inquiry, which requires the lay observer to apprehend by virtue of this principle of shadow cabinet, that the Deputy President may not bring to bear an independent mind.

43    The lay observer, whilst not assumed to have a detailed knowledge of the law, or the character or ability of the decision-maker, would understand that the decision-maker, by reason of professional training and experience (as required under s 627 of the FW Act) and fidelity to the oath required to be taken upon appointment (pursuant to s 634 of the FW Act) would have capacity to discharge that office uninfluenced by past professional relationships or conduct undertaken in a professional capacity. As observed by the High Court in Re Polites; Ex parte Hoyts Corporation Ltd [1991] HCA 25; 173 CLR 78 at 87:

The prior involvement of a Deputy President with associations or with governments who are frequently parties to proceedings before the Commission cannot be sufficient by itself to amount to a disqualification from sitting on a particular case; nor can the prior acquisition of “skills and experience” amount to such a disqualification. Deputy Presidents who are appointed on account of their industrial background are not disqualified merely because persons with that background have a measure of knowledge or are likely to have a particular attitude to the exercise of the Commission’s powers. To adopt the words of the Privy Council in Labour Relations Board of Saskatchewan v John East Iron Works Ltd, their background will not necessarily lead them “to act otherwise than judicially, so far as that word connects s stand of conduct”, even though the background which carries experience and knowledge acquired extra-judicially “assuredly means that the subject-matter is such as profoundly to distinguish such a tribunal from the courts…”

44    This holding reveals, that even where the person’s background might reveal an attitude to the way in which they consider (or considered) the Commission should or should not exercise its power or the political opinions they may have expressed about things connected to the Commission’s exercise of power, this would be insufficient to sustain an objection.

45    As emphasised by Mr Reitano for the respondent, the Supreme Court of Canada in Yukon Francophone School Board v Yukon [2015] 2 SCR 282 at [33]:

Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge’s identity and experiences not close his or her mind to the evidence and issues. There is, in other words, a crucial difference between an open mind and empty one.

46    Furthermore, even if the relevant provisions of the FW Act are the statutory embodiment of that Plan, for the reasons already given, such a view, could not reasonably give rise to an apprehension. Nothing arises rationally from the circumstances which suggest that someone doing their job properly as an elected representative of the people would not later do their job properly as a member of the Commission: QYFM at [42] per Kiefel CJ and Gageler J, [215] per Steward J.

47    As to the lengthy speech made in Parliament (in February 2021) (on its own or in combination with the other facts), a fair-minded lay observer is taken to have read or listened to the entire speech, and understand where it fits within the broader chronology of events, namely it was made some nine months before the Plan. Further, the observer can be taken to understand, from its content, that the speech was responding to the then Coalition Government’s Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (Cth) and made no prophetic reference to the proposed Plan or its substance.

48    As to the question asked in May 2021, the lay observer is provided no context for the question. It refers to specific pay slips that concern two abattoir workers without any detail. The fact that it concerns the disparity in pay as between two workers working alongside one another and being paid differently is insufficient to give rise to the alleged apprehension. Whilst I accept that the “tone” of a remark may be of relevance, the lack of any real connection to the applicants in this proceeding, means that the comment, regardless of tone, is not sufficient.

49    To the extent that the two extracts from Hansard and portion of the Plan that referred to coal mine workers are said to, in combination or by themselves, indicate partiality against the applicants, by the purported singling out of coal miners as a cohort, more would be required to give rise to an impermissible inference, in the mind of a fair-minded lay observer, than the mere identification of an industry.

50    There could be no suggestion in the mind of the lay observer that the Deputy President knew anything about any of the applicants.

51    The applicants suggested that the circumstances here were analogous to those in Locobail (UK) Ltd v Bayfield Properties [2000] 1 QB 451. However, in that case a judicial officer, presiding in personal injury proceedings, had disclosed to the parties various extra-curial writings he was publishing about personal injury matters, where he characterised insurers (the defendants in those matters) in a negative light. It was said to be analogous here to a statement as to the concerns of job security and inequality where coal miners working side by side were paid substantially differently. The circumstances are different here. This is not a case where the Deputy President was commenting, in her personal capacity, about proceedings of the kind about which she was presiding. The Deputy President, in Parliament, whilst representing her constituents and as a member of a political party, was referring to a speech given by (then) Mr Albanese and about the concerns this raised. As observed by the English Court of Appeal, in listing circumstances that may or may not lead to disqualification for bias, at [25], the mere fact that a judge had previously commented adversely about a party or witness would not, without more, found a sustainable objection. Furthermore, their Honours went on to note that the greater the passage of time between the event relied upon and the case where the objection is raised, the weaker, other things being equal, the objection will be. In this case, four years have elapsed.

52    It is my view, allowing for the Hansard extracts to form part of the circumstances informing the lay observer, the applicants’ case cannot succeed. Further, even if I were wrong, and the tender of the parliamentary material sought by the applicants should not be admitted by reason of s 16(3)(c), I would still find that the application for apprehended bias should not succeed. I would find that, on this more narrow case, the lay observer would not apprehend bias on the part of the Deputy President. The adoption of the Plan, as part of the Labor platform, would be insufficient to sustain an objection. It cannot be said that, by this discharge of her obligations as a party member and member of Parliament, this would lead the lay observer to apprehend that her past professional role would impugn her capacity to bring to bear an independent mind. The lay observer should be taken to appreciate the professional obligations that attend to the position of a member of Parliament and political party. Imputing the Deputy President with the Party’s policy does no more that to inform the lay observer that she is duly discharging her functions.

Section 16(3)(c) of the Parliamentary Privileges Act would not preclude the applicants’ ability to rely on the Hansard in this case

53    For the reasons already given, whilst it was not necessary for me to decide this issue, it is my view that had it been necessary to decide, the applicants would not be precluded, by operation of s 16(3)(c) of the Parliamentary Privileges Act, from relying on the two Hansard extracts.

54    Section 16(3) of the Parliamentary Privileges Act is given in the following terms:

16      Parliamentary privilege in court proceedings

……

(3)     In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a)     questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b)     otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c)     drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

(Emphasis added.)

55    As observed by Doyle CJ, in Rann v Olsen (2000) 76 SASR 450, at [73], the application of s 16(3) involves a consideration of what is to be done (the tendering of evidence, the asking of questions or the making of submissions) and whether that conduct concerns proceedings in Parliament. Of critical importance, is the purpose with which it is done and whether that purpose is one of those prescribed under s 16(3), that is where the purpose is asking the Court to make a finding or reach a conclusion of the prohibited kind. The proving of matters of fact does not fall within the prohibited purposes. For example, s 16(3) would not preclude, in the establishment of a plea of qualified privilege, the tendering of evidence, asking questions or making submissions about the words spoken in Parliament, because the purpose involves proving what the parliamentarian said, the circumstances in which he said it and the extent to which the statement was published: at [62]. The plea does not involve the Court making findings, as to whether the parliamentarian told the truth.

56    Similarly, in Leyonhjelm v Hanson-Young [2021] FCAFC 22; 282 FCR 341 per Rares, Wigney and Abraham JJ, the Full Court held, writing separately, that the operation of s 16(3)(c) did not preclude, the admission of Hansard extracts, as historical fact (as per Rares J at [43], Wigney J at [248] and Abraham J at [365]). It is instructive to set out the relevant portion of Abraham J’s reasoning:

365    As the primary judge properly concluded “it is not a breach of Parliamentary privilege for a party to prove, as a fact, that certain things were said in Parliament when proof of that fact is relevant to an issue in the proceedings and that proof is not led for one of the purposes proscribed by s 16(3) or its statutory or common law counterparts” at [369], citing inter alia, Mundey v Askin [1982] 2 NSWLR 369 at 373; Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 at 453; Buchanan v Jennings [2005] 1 AC 115 at [17]-[18]; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337; and Rann v Olsen at [73].

57    In this case, the sole purpose, of the tender and submissions, concerns the identification of the relevant circumstances informing the lay observer leading to the claimed apprehension of possible bias. The applicants do not tender the extracts for the purpose of drawing inferences or conclusions from anything forming part of Parliamentary proceedings (nor could they do so because they would be inadmissible on the basis of relevance). As observed by Abraham J in Leyonhjelm at [377]:

…. “[t]he application of s 16(3) involves a consideration of what is to be done (evidence, questions or submissions), whether that concerns proceedings in Parliament, and, of critical importance, the purpose with which it is done … the prohibited purpose must refer to something that the Court is asked to do in deciding the case … The critical thing is whether the question has a purpose that is not a prohibited purpose.”: Rann v Olsen at [73]-[74].

58    This Court is concerned with the appearance of impartiality, not impartiality as a matter of fact. The thought processes of the decision-maker (judicial or otherwise) are irrelevant to the question whether bias may be apprehended: SZBLY v Minister for Immigration and Citizenship [2007] FCA 765; 96 ALD 70 at [29] per Cowdroy J, Ebner at 345 per Gleeson, Gummow and Hayne JJ; NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [21] per Allsop J, with whom Moore and Tamberlin JJ agreed: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [184] per Hayne J:

59    To the extent that it was reasoned otherwise, in short ex tempore reasons by McDougall J in McCloy v Latham [2015] NSWSC 1782, the misstep appears to have arisen from the way that the summons pleaded that the observer was to draw inferences: at [5], [28]–[29]. Similarly, and respectfully, whilst Charlesworth J felt compelled by the principle of comity to follow McDougall J’s reasoning, it does not appear that Charlesworth J was assisted by the parties in, Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809; 299 FCR 50 per Charlesworth J at [215]–[219], as to why the reasoning in Rann v Olsen and Leyonhjelm are particularly instructive.

Conclusion

60    For these reasons, the application must be dismissed. The respondent foreshadowed making an application for costs at hearing and therefore procedural orders will be made to deal with that application.

Associate:

Dated:    11 August 2025

SCHEDULE OF PARTIES