Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd [1992] HCA 30

High Court of Australia Deane, Toohey AND Gaudron J Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd [1992] HCA 30

Deane, Toohey and Gaudron JJ

THE COURT. These are applications for an order nisi for a writ of prohibition directed to the Honourable John MacBean, a Deputy President of the Australian Industrial Relations Commission (the Commission), prohibiting him from further participating in the hearing and determination of certain proceedings before a Full Bench of the Commission. The central principle involved in the applications is well settled. It is that a judge or person obliged to act judicially in the discharge of the functions of a public tribunal should not sit to hear a matter if, in all the circumstances, a party or the public might entertain a reasonable apprehension that she or he might not bring an impartial and unprejudiced mind to the resolution of the question or questions in it. (See, eg, Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 7838 IR 114 at 118.)

The precise practical requirements of that principle vary from case to case. They will be influenced by the nature, function and composition of the particular tribunal. Thus, the operation of the principle in a case such as the present where it is sought to prevent a member of the Commission from participating in the determination of particular proceedings is governed by a number of considerations relating to the nature and functions of the Commission, the prescribed or desirable formal qualifications and practical experience of those appointed to discharge those functions, the nature of the contests involved, and the Australian industrial environment.

In the discharge of its functions, particularly that of the prevention of inter-State industrial disputes, the Commission is required to act promptly and effectively. In a context where its members are permanent and its resources are limited, it is desirable that the members, between them, possess a vast fund of practical background knowledge and experience extending over all facets of Australian industrial relations. Indeed, s 20 of the Industrial Relations Act 1988 Cth (the Act) requires each member of the Commission to "keep acquainted with industrial affairs and conditions". A potential or actual industrial dispute extending beyond the limits of any one State is liable to encompass a variety of issues or potential issues between the parties or potential parties to it. The nature of industrial relations in this country makes it inevitable that, in a particular industry, the leading employer and employee organisations, and their officers, will be frequently involved in dispute with one another. Obviously, the functioning of the Commission requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of the dispute and, inevitably, with facts relevant to the dispute and with one or more of the parties to the dispute. In that regard, it has long been recognised that, in most cases, that familiarity is an advantage rather than a disqualifying factor. Again, the Act itself obliges the President of the Commission to constitute industry panels to which a Presidential member and at least one Commissioner shall be assigned: s 37(1).