2010 WAIRC 00089

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2010 WAIRC 00089

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER S J KENNER

HEARD
:
TUESDAY, 16 FEBRUARY 2010

DELIVERED : 26 FEBRUARY 2010

FILE NO. : FBA 7 OF 2009

BETWEEN
:
LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH
Appellant

AND

THE DIRECTOR GENERAL, DEPARTMENT OF EDUCATION AND TRAINING
Respondent

ON APPEAL FROM:
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : COMMISSIONER J L HARRISON
CITATION : 2009 WAIRC 01232
FILE NO : C 35 OF 2009

CatchWords : Courts and judges – Apprehended bias – Disqualification of President – Spouse of acting President appeared as counsel at first instance – Whether doctrine of necessity applies – Principles considered – Power of Full Bench to depart from previous decisions – Power to appoint acting President to hear an appeal where holder of the office of President is unable to act.
Legislation : Industrial Relations Act 1979 (WA) s 11(1), s 15(1), s 17, s 17(1), s 17(1a), s 23(1), s 44, s 49, s 95(2)
Interpretation Act 1984 (WA) s 10(c), s 18
Result : Order made.
REPRESENTATION:
Counsel:
APPELLANT : MR R L HOOKER (OF COUNSEL)
RESPONDENT : MR R L BATHURST (OF COUNSEL)
Reasons for Decision
SMITH AP:
1 Through my Associate on 28 January 2010, I wrote to the parties to raise the issue whether I should hear this appeal as my spouse had appeared as counsel on behalf of the Union in the matter before the Commission at first instance. I invited the parties to make submissions about this matter in open court before the Full Bench on Tuesday, 16 February 2010.
2 The parties agree that no issue of actual bias arises and that this is a matter where apparent or ostensible bias is raised which arises solely because of the fact that I am related by marriage to counsel who appeared on behalf of the Union at first instance. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ observed:
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 (R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488). That principle gives effect to the requirement that justice should both be done and be seen to be done (R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ), 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.
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror [6] - [7].
3 Guide to Judicial Conduct (2nd ed, 2007) published for The Council of Chief Justices of Australia by The Australasian Institute of Judicial Administration Incorporated, provides that a judge or a member of a tribunal should not sit to hear a case where a party to a matter is represented by a close relative. Such a circumstance in my view directly raises a situation where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case. The Guide classifies the relationship of judge and spouse to be a first degree relationship and provides the following guidance about the conduct of matters in para 3.3.4(b) where such a relationship exists:
Where a judge is in a relationship of the first or second degree to counsel or the solicitor having the actual conduct of the case, or the spouse or domestic partner of such counsel or solicitor, most judges would and should disqualify themselves. Ordinarily there is no need to do so if the matter is uncontested or is a relatively minor or procedural matter. Nor is there a need to do so merely because the person in question is a partner in, or employee of, a firm of solicitors or public authority acting for a party. In such cases, it is a matter of considering all the circumstances, including the nature and extent of the involvement in the matter of the person in question. Some judges may be aware of cases involving such a relationship when the judge has sat without objection, but current community expectations make such conduct undesirable.
In most of these situations, Bar Rules in each jurisdiction require a barrister to return a brief to appear in a contested hearing, so the occasion for a judge to disqualify himself or herself should arise infrequently.
There may be a justifiable exception:
· By reference to the principle of necessity (see par 2.1);
· Where the solicitor-relative is a partner or employee of the solicitor on the record, but has not been involved in the preparation or presentation of the case;
· Where, notwithstanding the relationship, the parties to the case consent to the judge sitting but that may depend upon the nature of the relationship, which should be disclosed to the parties before the judge decides whether to sit or not to sit.
4 Whether a judge should disqualify himself or herself where apparent or ostensible bias is raised is a matter for the judge to decide as an individual: Kartinyeri v The Commonwealth [1998] HCA 52; (1998) 72 ALJR 1334. The respondent says I should disqualify myself, the appellant does not agree. The appellant does, however, concede that if there is a factual dispute about what occurred at the conference before Commissioner Harrison when the orders the subject of this appeal were made, it may be difficult to say that the independent observer referred to in Ebner would not have an apprehension that I might not be able to bring an impartial mind to the resolution of this appeal.
5 As the decision of the Commission at first instance was made at the conclusion of a compulsory conference convened by the Commission under s 44 of the Industrial Relations Act 1979 (WA) (the Act), no transcript of the proceedings was made. Affidavits made by Jessica Foster and Brett Owen are contained in the appeal book which purport to set out a record of who attended the conference and what was said during the course of the conference by the parties' representatives and Commissioner Harrison who convened the conference. Mr Bathurst has informed the Full Bench that the affidavits have yet to be analysed but there are some factual matters which will be in dispute between the parties.
6 It is clear to me that the grounds of appeal and the matters stated in the affidavits that the determination of this appeal will require members of the Full Bench to make findings of fact and draw inferences of fact from those affidavits and the other materials set out in the appeal book. This will include making findings of fact about the matters raised by my spouse on behalf of the appellant at first instance. In those circumstances it is also clear that a fair-minded observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the grounds of appeal. Where counsel for a party to a matter is related by marriage to the judge it is elementary that the judge should not sit as there is a real danger of actual bias and certainly the appearance of bias in such situations: The Hon James Thomas, Judicial Ethics in Australia (3rd ed, 2009) [5.6]. For this reason I am of the opinion that unless the principle of necessity applies I should not sit to hear and determine this appeal.
7 One of the justifiable exceptions which enables a judge or a member of a tribunal in a relationship to counsel in the first degree to sit on a matter is where the principle of necessity applies. The common law principle of necessity allows an otherwise disqualified decision maker to hear and decide a case where no other person is able to act to hear a matter. The application of the doctrine of necessity is raised because pursuant to s 15(1) of the Act each Full Bench must be constituted by no less than three members of the Commission one of whom shall be the President.
8 President Sharkey decided in 1992 that the doctrine of necessity prevents the President of the Commission from disqualifying himself or herself for bias unless the application of the doctrine of necessity would involve 'positive and substantial injustice': Carter v Drake (1992) 72 WAIG 736 at 744 - 746.
9 In Carter v Drake, Sharkey P found on the facts of the matter before him that although no apparent or ostensible bias applied, if the claims of bias had been upheld the doctrine of necessity excluded bias by the statutory constitution of the Commission when the Commission is constituted by the President. Sharkey P found at 744 - 745 that an acting President could not be appointed under s 17(1) of the Act unless the President was unable to attend to all of his or her duties on account of illness or otherwise and this would not arise if the President was to disqualify himself or herself from one matter. President Sharkey also found that he would be bound to disqualify himself if submissions persuaded him in a particular matter that the application of the doctrine of necessity would involve positive and substantial injustice (746).
10 The reasoning of Sharkey P in Carter v Drake was subsequently applied by the Full Bench in Commissioner of Police v Civil Service Association of Western Australia Inc (2001) 81 WAIG 3026 at [26], Volkofsky v Clough Engineering Ltd (2004) 84 WAIG 723 at 724 and CFMEU v BHP Billiton Iron Ore Pty Ltd (2005) 85 WAIG 1924 at 1927. The decision of Sharkey P in Carter v Drake was also applied by Sharkey P in J & R Sacca Poultry v Pearson (1998) 78 WAIG 819 in an application for a stay of an order pending an appeal to the Full Bench. It is of some importance that in each of these decisions the principles considered in Carter v Drake were not the subject of any argument. Further it is apparent from the facts set out in each of those cases that no real arguable case of bias was raised.
11 Both parties in this appeal agree that the reasoning of Sharkey P in Carter v Drake is in error and should not be followed. They also agree that it is open to the Governor to exercise the power to appoint a person to act in the position of President to hear and determine this appeal. Both counsel put forward a submission that the proper interpretation of s 17(1) of the Act is that if the President is required to disqualify herself or himself under normal principles of judicial conduct, an acting President may be appointed by the Governor to hear the case in question. It is common ground that it is not unusual for Governments in Australia to appoint an acting judge or judges where there are no members of a court who can hear a matter because of the application of the principles of bias or conflict of interest.
12 Consequently, the Full Bench in this matter must turn its mind to whether the reasoning of Sharkey P in Carter v Drake should not be followed. In Nguyen v Nguyen (1990) 169 CLR 245 Dawson, Toohey and McHugh JJ observed in relation to the ability of a State Supreme Court to overturn an earlier decision that:
Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability [sic]of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 at 620 per Aickin J.
This Court has never regarded itself as bound by its own decisions, which is all the more appropriate now that it is a court of last resort for all purposes. There is a point of view that different considerations should govern the situation of an intermediate court of appeal: see Young v Bristol Aeroplane Co Ltd [1944] KB 718; Davis v Johnson [1979] AC 264; Miliangos v Frank (Textiles) Ltd [1976] AC 443. But even if that view were correct, now that appeals to the High Court are by special leave only, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances courts of last resort for all practical purposes. There is no equivalent of s 12 of the Administration of Justice Act 1969 (UK) to authorize 'leap-frog' appeals which would by-pass those courts as the Court of Appeal may be by-passed in the United Kingdom. See, however, Sanofi v Parke Davis Pty Ltd [No 1] (1982) 149 CLR 147. In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty (269 - 270).
This reasoning was applied by the Full Bench in Hanssen Pty Ltd v Construction, Forestry, Mining and Energy Union (Western Australian Branch) [2004] WAIRC 10828; (2003-2004) 84 WAIG 694.
13 Unlike other courts of appeal, the High Court has power to review and depart from its previous decisions. However, such a course is not lightly undertaken. In The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 Stephen J (59) with whom Aickin J agreed (66) specified the following four matters that will justify departure by the High Court from earlier decisions. These are:
(a) The earlier decisions do not rest on a principle carefully worked out in a significant succession of cases;
(b) There was a difference between the reasons of the justices constituting the majority in one of the earlier decisions;
(c) The earlier decisions have achieved no useful result but to the contrary have led to considerable inconvenience;
(d) The earlier decisions have not been independently acted on in a manner which militates against reconsideration.
This criteria was applied in John v Commissioner of Taxation of the Commonwealth of Australia (1989) 166 CLR 417, by Mason CJ, Wilson, Dawson Toohey and Gaudron JJ (438 - 439). Whilst it is the case that the Full Bench can overrule its own decisions it is my view that it should only do so when an earlier decision is patently wrong in law and when at least one of criteria set out by Stephen J in Hospital Contribution Fund is made out.
14 As counsel for the respondent points out, the observations in Carter v Drake that the power to appoint an acting President to hear a case when the President is 'unable to attend to his duties … whether on account of illness or otherwise' can only be exercised in cases where illness or something else prevents the President being present to attend work is obiter (as Sharkey P had already decided he would not disqualify himself for bias). Therefore, in the absence of being applied in subsequent Full Bench decisions the reasoning in Carter v Drake could not be considered binding.
15 In my opinion, with respect, the reasoning of Sharkey P in Carter v Drake is plainly wrong in law. Firstly, in reasoning that the reference to 'duties' excludes the operation of s 17 in a single duty where the President should not sit, ignores the operation of s 10(c) of the Interpretation Act 1984 (WA) which provides that words in the plural include the singular. When regard is had to s 10(c) of the Interpretation Act, it is clear as Mr Hooker points out that an inability to attend to duties within the meaning of s 17(1) of the Act must mean more than whether the person who holds the office of President is able to come to work or not. As Mr Bathurst properly points out one of the purposes of the Act is to set up a Commission that is able to decide matters impartially. This duty is expressly reflected in s 11(1) of the Act, which requires each member of the Commission to make an oath before a judge that he: 'will faithfully and impartially perform the duties of his office'.
16 Secondly, the reasoning is based on an incorrect, or incomplete, view of the contemporary rules of statutory interpretation: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1980) 147 CLR 297; Mills v Meeking (1990) 169 CLR 214. In particular, not only does the reasoning in Carter v Drake not have regard to the express intention of the Act that all members of the Commission are to act impartially, the reasoning takes no account of the difference in wording between s 17(1) and s 95(2) of the Act. As Ritter AP observed in Kenji Auto Parts Pty Ltd t/as SSS Auto Parts (WA) v Fisk (2007) 87 WAIG 328 [38] statutory construction involves a consideration and analysis of the meaning of the words used in a section in the context of the legislation and legislative scheme as a whole, to try to discern the intention of the legislature: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (381) (McHugh, Gummow, Kirby and Hayne JJ); and Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401 [8] (Gleeson CJ). Courts must seek to ascertain the statutory purpose and legislative intention from the words used in the statute (and can use other aids as are legitimately available). Where the will of Parliament is clear, a court or tribunal must give effect to that clearly expressed will.
17 Section 17(1) and s 17(1a) of the Act provide:
(1) Where a member of the Commission is, or is expected to be, unable to attend to his duties under this Act, whether on account of illness or otherwise, the Governor may appoint a person to be acting President, acting Chief Commissioner, acting Senior Commissioner or an acting commissioner, as the case may require, for such period as the Governor determines.
(1a) Where the office of President is vacant, or is expected to become vacant, the Governor may appoint a person to be acting President.
18 Section 95(2) of the Act provides:
During the illness, temporary incapacity, or temporary absence from office of the Registrar, the designated deputy registrar shall have and may exercise the powers and authorities and shall discharge the duties of the Registrar under this Act.
The ability of a deputy registrar to act as Registrar in the absence of the Registrar is by the language used in s 95(2) of the Act confined to a temporary incapacity or temporary absence. The language used in s 95(2) is much narrower than the language used in s 17(1) of the Act. Section s 95(2) contemplates that the Registrar must be unable to be present to attend to his or her duties of the office of Registrar. Section 17(1) does not raise a similar requirement. The term 'otherwise' in s 17(1) is broad and unconstrained by any other terms in the provision. When s 17(1) is interpreted by having regard to its context, particularly the requirement to take an oath in s 11(1) to act impartially and to the fact that the legislature did not expressly confine the power to appoint an acting President to a temporary absence from office as opposed to being unable to attend to duties, it is plain that the legislature did not intend that s 17(1) could not operate when the President accepts that an issue of bias properly raised and accepted also raises a duty on the President to disqualify himself or herself.
19 I do not agree that s 17(1) is open to more than one construction. If I am wrong on this point, as Mr Bathurst points out, where an ambiguity arises, a court or tribunal should prefer the construction that appears to achieve the legislative purpose rather than one that appears to defeat or frustrate: New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 (CA), Kirby P (319). This approach is enshrined in statute in s 18 of the Interpretation Act. The application of the reasoning of Sharkey P in Carter v Drake to matters where an issue of apparent or ostensible bias on behalf of the President is made out would result in matters such as this appeal not being able to proceed to hearing and determination if no appointment can be made under s 17 of the Act. Such a result is unjust. If there is no appeal at all it is possible that this would involve positive and substantive injustice which is inconsistent with the purpose of the Act to provide an independent arbitral body to resolve disputes which includes and preserves rights of appeal. In addition, if the doctrine of necessity applies this would, at least in this matter, result in positive and substantial injustice, in that a party or parties must be judged by a President who, according to required community standards, should not be sitting.
20 I am of the opinion that the reasoning in Carter v Drake should no longer be considered good law. In my opinion two of the criteria considered by Stephen J in Hospital Contribution Fund as reasons for departing from an earlier decision are satisfied. These are:
(a) The reasoning does not rest on a principle carefully worked out in a significant succession of cases;
(b) Because the decision has not been the subject of argument in any matter before a Full Bench it cannot be said that the decision has been independently acted on in a manner which militates against reconsideration.
Conclusion
21 I am of the opinion that the doctrine of necessity does not apply to the powers, functions and duties of the President under the Act. I am also of the opinion that if the person appointed as President or acting President of the Commission is unable to act to hear and determine a matter because an issue of actual bias, or apparent or ostensible bias, has been raised which makes it clear to the person holding the office of President that it would be improper for that person to sit as President, s 17(1) of the Act can be invoked to appoint a qualified person to act as President to hear and determine the matter in which the issue of bias has been raised. As set out above I am of the opinion that I should disqualify myself from hearing and determining this appeal. It follows therefore that this appeal cannot proceed until an appointment has been made under s 17(1) of the Act to appoint a qualified person to act as President to hear and determine this appeal.
22 For these reasons I am of the opinion that an order should be made that this appeal be adjourned sine die. I would anticipate that once an appointment is made a date can be fixed for the hearing of the appeal and the matter can promptly proceed.
BEECH CC:
23 I have had the advantage of reading in draft form the reasons for decisions of her Honour the Acting President. The decision of the Hon Acting President that she should disqualify herself from hearing and determining this appeal is a matter for her Honour. The Guide to Judicial Conduct (2nd edition), March 2007, Australasian Institute of Judicial Administration at 3.5(a) shows that if a judge considers disqualification is required, the judge should so decide. I respect the decision of the Acting President.
24 I am of the view that the reasons expressed by Sharkey P in Carter v. Drake (1992) 72 WAIG 736 must be seen in the context of its own circumstances. Subsequent cases in the Commission, Commissioner of Police v. Civil Service Association of WA Inc. (2001) 81 WAIG 3026; [2001] WAIRC 04107; Volkofsky v. Clough Engineering Limited (2004) 84 WAIG 723; [2004] WAIRC 10949; and CFMEU v. BHP Billiton Iron Ore Pty Ltd (2005) 85 WAIG 1924; [2005] WAIRC 01797, were not circumstances where Carter v. Drake was re-examined and these cases do not take the issue any further.
25 In Carter v. Drake, Sharkey P was asked to disqualify himself for ostensible or apparent bias arising from:
(a) a number of dicta in reasons for decision;
(b) by remarks in discussion with counsel;
(c) for having given the appearance for pre-determination of an issue by touching upon, and appearing to publish, a point of view which went to the very subject matter of the proceedings; and
(d) having made interim orders on the basis of no evidence.
26 The matters complained of before Sharkey P had arisen only in interim orders and directions hearings both before and after the final hearing and determination of some of the matters. Those circumstances are distinguishable from the facts in this matter.
27 Sharkey P concluded that there was no real possibility either that his participation might lead to a reasonable apprehension of pre-judgment or bias and declined to disqualify himself for bias on that ground. That conclusion, with respect, appears consistent with the observation in the Guide to Judicial Conduct at page 15 that:
“What a judge may have said in other cases by way of expression of legal opinion whether as obiter dicta or in dissent can seldom, if ever, be a ground for disqualification.”
28 To that extent, the comments made by Sharkey P subsequent to that conclusion regarding the application of the doctrine of necessity to the office of President are, with respect, obiter. Nevertheless, in my view, with respect, the conclusion reached by Sharkey P at 745 that the words “illness or otherwise” in s 17 of the Industrial Relations Act, 1979 (“the Act”) have to be interpreted to mean illness or something else which prevents the President to be present to attend his work appears to be too narrow an interpretation. Sharkey P states that at 745 that if the President were to disqualify himself for bias then for the reasons he gives, an Acting President could not be appointed merely because the President disqualifies himself from hearing one matter. It appears to follow from Sharkey P’s reasoning at p 746 that although he would be bound to disqualify himself if the submissions made to him persuaded him that the application of the doctrine of necessity would involve positive and substantial injustice, if that disqualification was for one matter no Acting President could be able to be appointed because the President was not ill or otherwise not able to attend to his work. This would, in my view, mean that the matter would not be able to be heard which would be contrary to the purpose of the Act.
29 Where personal relationships do arise in a matter as discussed in the Guide to Judicial Conduct at 3.3.4, whether of the first, second or third degree, and it is appropriate that the judicial officer disqualify himself or herself, s 17 should not be read to require that judicial officer to continue to deal with the matter. This matter is not a case where the Acting President is unable to attend to her duties under the Act on account of illness; nor is there something else which prevents the Acting President being present to attend to her duties under the Act. Therefore, I agree with the conclusions of the Acting President and in particular, I agree with the Acting President that the legislature did not intend that s 17(1) could not operate when the President accepts that an issue of bias properly raised and accepted also raises the duty on the President to disqualify him or herself.
30 In the circumstances, the appropriate order to be made is that the appeal be adjourned sine die and I agree with the order to issue.
KENNER C:
31 To the extent that I am able to do so, I agree with the reasons to be published by the Acting President that she disqualifies herself on the grounds of ostensible bias.
32 I am also in general agreement that the decision of Sharkey P in Carter v Drake (1992) 72 WAIG 736 should now be regarded as wrongly decided. I add the following brief observations of my own.
33 The reasoning in Carter has been adopted in subsequent decisions of the Full Bench: Commissioner of Police v Civil Service Association of Western Australia Inc (2001) 81 WAIG 3026; John Paul Volkofsky v Clough Engineering Limited (2004) 84 WAIG 723. Whilst the Full Bench should be hesitant to overrule its previous decisions, it should not shrink from doing so where it considers its previous decisions to be wrong. This is particularly so in cases involving statutory interpretation, where an appellate court considers an earlier interpretation to be erroneous: Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; John v Federal Commissioner of Taxation (1989) 166 CLR 417.
34 Whilst the rule of necessity can ground an exception to disqualification on the grounds of bias in certain circumstances, in my opinion, the doctrine has no application in this jurisdiction under s 17 of the Industrial Relations Act 1979 (“the Act”).
35 With respect, in Carter, Sharkey P placed an overly restrictive construction on the ordinary and natural language of s 17(1) as to the meaning of “unable to attend to his duties under this Act, whether on account of illness or otherwise ….” In my view, there is no warrant to read down the words “or otherwise” as a matter of plain construction, to apply only to the circumstance of the physical absence from work of the Commission Member, in that case, the President. Where a Member of the Commission, whether it be the President or any other Member, is unable to sit by reason of actual or ostensible bias, and no other Member is available to sit to deal with the matter, the Parliament has provided a mechanism in s 17(1) of the Act, to make an acting appointment to enable the Commission to function.
36 Such a construction is entirely consistent with the overall purposes and objects of the Act, which is to be taken into account in a contemporary approach to statutory interpretation: s 18 Interpretation Act 1984.
37 Where, as in this case, the President or an Acting President of the Commission is unable to sit to hear and determine a matter on the basis of ostensible bias, then plainly in my view, they are “unable to attend to their duties” in respect of the particular matter or matters in question. A disqualification on the grounds of bias, means that a Member of the Commission is unable to perform his or her statutory duty to “enquire into and deal with any industrial matter” for the purposes of s 23(1) of the Act, including exercising appellate jurisdiction under s 49 of the Act.
38 I agree with the order as proposed.