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Gilbert v Metro North Hospital Health Service[2022] ICQ 35

Gilbert v Metro North Hospital Health Service[2022] ICQ 35

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Gilbert v Metro North Hospital Health Service & Ors [2022] ICQ 35

PARTIES:

MARGARET MARY GILBERT

(appellant)

v

METRO NORTH HOSPITAL HEALTH SERVICE

(first respondent)

MICHELLE GARDNER

(second respondent)

STATE OF QUEENSLAND

(third respondent)

SILVIA SUMMERS

(fourth respondent)

QUEENSLAND NURSES AND MIDWIVES’ UNION OF

EMPLOYEES

(intervenor)

FILE NO/S:

C/2021/17

PROCEEDING:

Application 

DELIVERED ON:

23 December 2022

HEARING DATE:

21 December 2022

MEMBER:

Davis J, President

ORDER/S:

  1. The hearing of the appeal be adjourned to be heard by a member of the Court other than the President.
  2. Costs are reserved.

CATCHWORDS:

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – REASONABLE APPREHENSION OF BIAS – where the appellant in an appeal alleged apprehended bias against the judge who heard and reserved judgment on the appeal – where the circumstances upon which the apprehension allegedly arises occurred or became apparent after the hearing of the appeal but before judgment – where the judge, prior to appointment, had been a member of the Australian Labor Party (ALP) – where the judge had assisted Peter Russo MLA in his 2015 campaign for the ALP in the Queensland general election – where the judge resigned membership of the ALP before being sworn in as a judge – where the ALP holds government in Queensland – where the appellant’s claim was dismissed – where she appeals where her appeal may depend on whether the Nurses Professional Association of Queensland (NPAQ) is either an “industrial association” or a “trade union” – where after the hearing of the appeal, the government introduced a bill to effectively legislate that organisations such as the NPAQ are not an “industrial association” or a “trade union” – where the judge made a submission to the Minister for increased powers to regulate advocates before the Queensland Industrial Relations Commission (QIRC) – where amendments in response to that submission were proposed – whether the submission to the Minister gave rise to an apprehension of bias whether the judge’s former membership of the ALP and his association with Mr Russo MLA gave rise to an apprehension of bias – whether inquiry into the grounds of apprehension were prohibited by parliamentary privilege – exercise of discretion to disqualify

Associations Incorporation Act 1981

Industrial Relations Act 2016, s 278, s 279, s 282, s 285, s 295, s 412, s 435, s 436, s 529, s 530

Industrial Relations and Other Legislation Amendment Bill 2022

Legal Profession Act 2007

Parliament of Queensland Act 2001, s 8, s 9

CASES:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, followed

Erlgis v Buckley [2004] 2 Qd R 599, followed

Gas & Fuel Corporation Superannuation Fund & Ors v Saunders & Anor (1994) 123 ALR 323, followed

Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255, related

GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] ICQ 2, cited

GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2) [2022] ICQ 008, cited 

Johnson v Johnson (2000) 201 CLR 488, followed

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, followed

Pebble v Television New Zealand Ltd [1995] 1 AC 321, followed

R v Watson; Ex parte Armstrong (1976) 136 CLR 248, cited

Rowley v O'Chee [2000] 1 Qd R 207, followed

APPEARANCES:

The appellant appeared on her own behalf

A Duffy KC with E Shorten for the respondents

P McCafferty KC with C Massey for the Queensland Nurses and Midwives’ Union of Employees, intervening C Tessmann for the Speaker of the Legislative Assembly appearing amicus curiae

  1. [1]
    The appellant, Ms Gilbert, filed an application seeking an order that I disqualify myself from delivering judgment in an appeal which I heard some time ago.
  2. [2]
    Ms Gilbert is the President of the Nurses Professional Association of Queensland (NPAQ) which is an association incorporated under the Associations Incorporation Act 1981.
  3. [3]
    Ms Gilbert claimed, in proceedings in the Queensland Industrial Relations Commission (QIRC), that she was the subject of adverse action[1] as a result of her involvement with NPAQ.  Her application was dismissed by O'Connor VP.[2]  She appealed.  I heard her appeal and judgment is reserved.
  4. [4]
    A central question, both below and on appeal, is as to the status of NPAQ.  Put shortly, if NPAQ is an “industrial association”[3] or a “trade union”,[4] then action taken against Ms Gilbert as a result of her activities with NPAQ could constitute adverse action.  If not, they cannot.
  5. [5]
    The present application was originally based upon three broad facts:
    1. I sent a letter to the Honourable Grace Grace MP, Minister for Education, Minister for Industrial Relations and Minister for Racing on 22 June 2022 (my letter).  I will respectfully refer to the Honourable Grace Grace MP as “the Minister” and I will return to the letter shortly.
    2. I was a member of the Australian Labor Party (ALP) and was politically active before being appointed to the Supreme Court of Queensland on 16 October 2017.
    3. There has been delay in delivering judgment on the appeal.
  6. [6]
    Ms Gilbert’s concerns are raised in her letter to me of 31 October 2022.  I will replicate that in full:

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

  1. [7]
    Ms Gilbert’s application specifies grounds as follows:

 “1.  This matter was heard 12 months ago.

  1. Not long following the appeal, amendments to the Industrial Relations Act were flagged for Parliament to consider with justification being to ‘clarify the Gilbert matter’ even though it was still subject to appeal.
  2. His Honour made a submission[5] and corresponded with Parliament regarding the Industrial Relations and Other Amendment Bill.
  3. I wrote to his Honour on 30 September 2022 expressing some concern that a decision was taking longer than 3 months and that delay in a decision could effectively render parts of this decision moot as legislation would amend sections of the Act that were being considered in this matter.
  4. A month later, the Bill was debated in Parliament and his Honour’s name was mentioned many times personally in the House.
  5. Amendments to the Industrial Relations Act aimed at harming my union were justified by members of the Government by referencing his Honour’s submission to the Parliamentary Committee conducting a review into the proposed Bill in a letter to Minister Grace.
  6. His Honour’s close connection with at least one member of the Government, Peter Russo was also mentioned in Parliament and engaged his role as President of the Industrial Court.
  1. I note many members of the Government made offensive comments about my union and do not like the idea of my union competing with their unions. Many members in the house pointed out the financial link between the ALP and the unions as the real reason for the legislation that attempts to coerce my members back into the QNMU.
  1. The Courier Mail has reported on ALP MP Mr Russo expressing gratitude for his Honour assisting his political campaign.
  2. I then wrote to his Hon Peter Davis on 31 October asking him to recuse himself from this matter and have an alternative Supreme Court Judge deliver a decision on the transcripts.
  3. I did not hear back so I wrote to the Chief Justice on 22 November asking to investigate the state of my matter.
  4. In my letter I noted concern about the extreme delay in my decision and concern that the delay could be perceived as allowing legislation ‘clarifying the matter’ and diminishing my union to catch up to his Honour’s decision so that no benefit should be given to my union if a favorable decision were to be handed down.
  5. I am concerned the Government is aiming to interfere with this matter given the timing of the legislation and given the close connection his Honor has with members of the Government, it would be proper for an alternative Judge.
  6. Due to credibility of witnesses not being an issue in question, on balance, having an alternative Justice would be favourable.
  7. I have attached my letters of 30 September 2022, 31 October 2022 and 22 November 2022.”
  1. [8]
    Since the letter of 31 October 2022 was sent by Ms Gilbert, Mr N Ferrett KC was briefed on her behalf.  He drafted written submissions upon which Ms Gilbert relied.  Mr Ferrett did not appear on the application.  Had Mr Ferrett appeared, I would have directed many questions to him about his written submissions. It was difficult for Ms Gilbert to present the arguments drawn by counsel.  She did her best.
  2. [9]
    No reliance is now made on statements made in Parliament.  It is conceded by Ms Gilbert that statements made by third parties could not bear upon the issue of apprehended bias.  
  3. [10]
    No reliance is now made by Ms Gilbert on the fact that the delivery of judgment was delayed.  
  4. [11]
    The substantive argument now is:
    1. A central issue in the appeal is whether NPAQ is:
      1. (a)
        an “industrial association”; and/or
      2. (b)
        a “trade union”.
    2. That is a political issue to the extent that one side of politics advocates for maintenance of an industrial system only permitting registered organisations or bodies capable of being registered.  NPAQ is neither.
    3. I have a past political association with the ALP and Mr P Russo the Member for Toohey in particular.
    4. It is said that, in my letter to the Minister:
      1. (a)
        I advocated for a particular policy outcome;
      2. (b)
        I do not in my letter canvass all contrary arguments to the policy that I am allegedly advocating;
      3. (c)
        the subject matter of the letter concerns issues to be decided on the appeal.
    5. It is submitted that, because of those factors, a fair-minded bystander would reasonably apprehend that an impartial mind might not be brought to bear on what are essentially questions of statutory interpretation.
  5. [12]
    There are obvious problems with the submissions.
  6. [13]
    The respondents oppose the application.  The Queensland Nurses and Midwives’ Union of Employees (QNMU), who intervened in the appeal by leave, made some submissions on the application, but those submissions were limited, as is their interest in the appeal.

Legal principles

  1. [14]
    In Ebner v Official Trustee in Bankruptcy,[6] the High Court held that apprehended bias will disqualify a judge from a case “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”.[7]
  2. [15]
    The test, the High Court held, requires the adoption of a two-step process:

“First, it requires the identification of what 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.”[8]

  1. [16]
    Ms Gilbert has, as already observed, expressly abandoned reliance upon what was said in Parliament.  She mentioned, in her letter of 31 October 2022, comments made in a Courier-Mail article which was written by Mr Des Houghton.  The question for my determination is not what a reasonable fair-minded person might think about the facts as described by a journalist.  As Mason CJ and Brennan J (as his Honour then was) observed in Laws v Australian Broadcasting Tribunal:[9]

“In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case.”[10] (emphasis added)

  1. [17]
    In Gas & Fuel Corporation Superannuation Fund & Ors v Saunders & Anor,[11] the Full Court of the Federal Court held that it was necessary for a judge hearing an apprehended bias application to determine the facts upon which the fair-minded observer would form their opinion.  

Background concerning the sending of my letter and the aftermath

  1. [18]
    I was appointed President of the Industrial Court of Queensland (ICQ) and the Queensland Industrial Relations Commission (QIRC) in 2020.  Section 412 of the Industrial Relations Act 2016 (the IR Act) defines the functions of the President as: “

“412 Functions of the president

  1. (1)
    The president has the functions given to the president under this Act or another Act.
  2. (2)
    The functions of the president include—
    1. managing and administering the court, including deciding who constitutes the court for a proceeding; and
    2. preparing and giving the annual report to the Minister under section 594.
  3. (3)
    The president has the power to do all things necessary or convenient to be done for the performance of the president’s functions.
  4. (4)
    The president may delegate a function of the president to the vice-president or a deputy president (court).”
  1. [19]
    Over my period as President, the Minster has sought my comment on amendments to the IR Act and other legislation, no doubt on the basis that I am responsible for “managing and administering the court”.[12]  I have a similar function in relation to the QIRC.[13]  Section 436 is of relevance.  It provides:

“436 Other functions of the president

The functions of the president in relation to the commission include—

  1. (a)
    developing performance measures that apply to members of the commission in carrying out its functions; and
  1. (b)
    developing a code of conduct for—
  1. (i)
    members of the commission; and
  1. (ii)
    persons appearing before the commission.” (emphasis added)
  1. [20]
    Section 436 recognises the role which a court or tribunal has in regulating advocates who appear before it.
  2. [21]
    It is common for a minister to consult with the head of a court[14] about matters concerning the court.  It is common for the head of a court[15] to raise with a minister matters of concern which might need to be legislatively addressed.  Ms Gilbert accepted those propositions in argument.
  3. [22]
    Section 530 of the IR Act concerns the representation of entities before the ICQ and the QIRC.  At the time of my letter to the Minister, ss 529 and 530 provided:

“529 Representation of parties generally

  1. (1)
    Subject to section 530A(4), in proceedings, a party to the proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by— 
  1. (a)
    an agent appointed in writing; or 
  1. (b)
    if the party or person is an organisation—an officer or member of the organisation. 
  1. (2)
    In this section— 

proceedings— 

  1. (a)
    means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  2. (b)
    includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator.

530 Legal representation

  1. (1A)
    This section applies in relation to proceedings other than a proceeding for a public service appeal.
  1. (1)
    A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if—
  1. (a)
    for proceedings in the court—
  1. (i)
    all parties consent; or
  2. (ii)
    the court gives leave; or
  3. (iii)
    the proceedings are for the prosecution of an offence; or
  1. (b)
    for proceedings before the full bench—the full bench gives leave; or
  2. (c)
    for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991—the commission gives leave; or
  3. (d)
    for other proceedings before the commission, other than the full bench—
  1. (i)
    all parties consent; or
  1. (ii)
    for a proceeding relating to a matter under a relevant provision—the commission gives leave; or
  1. (e)
    for proceedings before an Industrial Magistrates Court—
  1. (i)
    all parties consent; or
  2. (ii)
    both of the following apply—
  1. (A)
    the proceedings relate to a matter that could have been brought before a court of competent jurisdiction other than an Industrial Magistrates Court; and
  1. (B)
    an Industrial Magistrates Court gives leave; or
  1. (iii)
    the proceedings are for the prosecution of an offence; or
  1. (f)
    for proceedings before the registrar, including interlocutory proceedings—
    1. all parties consent; or
    2. the registrar gives leave; or
  2. (g)
    for proceedings before a conciliator—the conciliator gives leave.
  1. (2)
    However, the person or party must not be represented by a lawyer—
    1. if the party is a negotiating party to arbitration proceedings before the full bench under chapter 4, part 3, division 2; or
    2. in proceedings before the commission under section 403 or 475; or
    3. in proceedings remitted to the Industrial Magistrates Court under section 404(2) or 475(2).
  2. (3)
    Despite subsection (1), a party or person may be represented by a lawyer in making a written submission to the commission in relation to—
    1. the making or variation of a modern award under chapter 3; and
    2. the making of a general ruling about the Queensland minimum wage under section 458.
  3. (4)
    An industrial tribunal may give leave under subsection (1) only if—
    1. it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
    2. it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or
    3. it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.

Examples of when it may be unfair not to allow a party or person to be represented by a lawyer—

  • a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy
  • a person is from a non-English speaking background or has difficulty reading or writing
  1. (5)
    For this section, a party or person is taken not to be represented by a lawyer if the lawyer is—
  1. (a)
    an employee or officer of the party or person; or
  1. (b)
    an employee or officer of an entity representing the party or person, if the entity is—
  1. (i)
    an organisation; or
  2. (ii)
    an association of employers that is not registered under chapter 12; or
  3. (iii)
    a State peak council.
  1. (6)
    In proceedings before the Industrial Magistrates Court for the prosecution of an offence under subsection (1)(e), the person represented can not be awarded costs of the representation.
  2. (7)
    In this section— industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.

proceedings—

  1. (a)
    means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  2. (b)
    includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator. 

relevant provision, for a proceeding before the commission other than the full bench, means—

  1. (a)
    chapter 8; or
  2. (b)
    section 471; or
  3. (c)
    chapter 12, part 2 or 16.”
  1. [23]
    Section 529(1)(a) gives a litigant the right to appoint an agent to represent them.  When read with s 530, the intention is that the agent is a person other than a lawyer.
  2. [24]
    Representation before Queensland Courts is generally through lawyers who are admitted to practice by the Supreme Court of a State and regulated by professional structures established by legislation.[16]  Queensland lawyers have a right of appearance in most courts and tribunals.
  3. [25]
    Section 530 embodies a policy that the QIRC is a “lay tribunal” and should not be the domain of lawyers.  That necessarily raises questions as to the identity and competence of the advocates who appear and how they should be regulated.  
  4. [26]
    By 22 June 2022,[17] I had sat on an appeal where a non-legally qualified agent had appeared for an appellant.  That was GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011.[18]  The agent was clearly incapable of representing the appellant.  I was by that point also receiving expressions of concern from various Commissioners in relation to the performance of unqualified agents who were apparently charging fees to appear in the QIRC.  
  5. [27]
    Consistently with my functions as President, I thought it appropriate to send my letter, which I did on 22 June 2022, to address the issue.  It is replicated in full below: 

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

  1. [28]
    Similar issues were raised by the Queensland Law Society (QLS) in a letter to a Senate Committee in September 2021.  The letter is replicated below:

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

  1. [29]
    As the QLS letter shows, the issues raised by agents appearing in industrial tribunals has raised the concern of the Australian Competition and Consumer Commission.
  2. [30]
    The Industrial Relations and Other Legislation Amendment Bill 2022 (the bill) was introduced into Parliament.  The bill sought to prohibit organisations such as the NPAQ from the industrial relations system.  The bill came before the Education, Employment and Training Committee (the Committee).  The Committee sent a copy of my letter to the QLS.  On 19 July 2022, the QLS wrote to the Committee.  The letter replicated in full is:

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

Gilbert v Metro North Hospital Health Service [2022] ICQ 35

  1. [31]
    The QLS letter of 19 July 2022 supports the views expressed in my letter.
  2. [32]
    The Committee reported to the House in August 2022. 
  3. [33]
    The Second Reading Speech for the bill was made on 26 October 2022.  Debate was heard on 26, 27 and 28 October 2022.  Some of the passages are replicated in Ms Gilbert’s letter of 31 October 2022.  In due course, amendments were passed.
  4. [34]
    As already observed, Ms Gilbert relies upon my past association with the ALP and Mr Russo.  To establish that past association, Ms Gilbert relies on statements made in the Assembly by Mr Russo.  However, the details of that past association are otherwise on the public record.

Application of the Ebner test

My past association with the ALP and Mr Russo

Identification of what is said to give rise to the apprehension

  1. [35]
    It is the case, as I have previously disclosed,[19] that:
  1. In 2014, I was the President of the Queensland Bar Association.
  2. I resigned as President in 2014 after the Liberal National Party government of the day appointed the Chief Magistrate, Timothy Carmody KC, as Chief Justice of Queensland.
  3. In the 2015 State election, I was politically active supporting Mr Russo who was then the ALP candidate seeking election to the seat of Sunnybank.
  4. My involvement with Mr Russo’s election campaign included assisting him in fundraising for the 2015 election and supporting booth workers on election day.
  5. Prior to my appointment as a judge of the Supreme Court of Queensland on 16 October 2017, I was a member of the ALP.  Before being sworn in as a judge, I resigned my membership of the ALP and I am not now a member of the ALP or any other political party.  I have not, either directly or indirectly, been involved in any political activity since being sworn in as a judge other than exercising my democratic right to vote in various elections.
  1. [36]
    Mr Russo is married to the Honourable Kerri Mellifont, a Judge of the Supreme Court of Queensland.  Mr Russo is a lawyer.  I have attended various professional functions where Mr Russo has been present.  I have otherwise had no contact with him since being sworn in as a judge.

What is the logical connection between my former association with the ALP and Mr Russo and the apprehension that I might decide Ms Gilbert’s appeal otherwise than on its merits?

  1. [37]
    On 12 March 2022, I was mentioned in a Courier-Mail article entitled, “Long arm of Queensland Labor Inc: Court of Comrades”.  The article was an editorial style piece identifying judicial officers who had some past connections with the ALP.  That article prompted an application that I disqualify myself from hearing a particular case.  In dismissing that application, I wrote:

“[17] Society is governed by laws. Judges are lawyers. Lawyers study the workings of society. As educated people interested in the workings of society, many, and in my experience most, lawyers hold some political views. Many are politically active in varying degrees. Of course those political views vary.

[18] The Honourable James Thomas AM, formerly a judge of the Court of Appeal of Queensland, in his highly respected text Judicial Ethics in Australia, Third Edition, LexisNexis, Butterworths 2009, says this of a judge’s political connections:

‘After appointment a judge should not be an active member of any political party, should not fraternise with those in the echelons of political power and should not actively support causes which produce partisan reaction in the community. It would be improper for a judge to participate in a political party convention. As the divorce from political partisanship needs to be complete, a judge should resign from membership of any party. Continued silent membership could be seen as clandestine support.” [19] There is nothing prohibiting a person with political affiliations taking judicial office. Chief Justice Latham, Chief Justice Barwick and Justice Murphy were all Commonwealth Attorneys-General and all three sat on the High Court. Wanstall CJ and Connolly J both held seats in the Queensland Legislative Assembly before being appointed to the Supreme Court. There are persons who have held seats in the Commonwealth Parliament and have gone on to be appointed to the Federal Court. Examples exist from both sides of politics; Bowen CJ and Kerr J for instance. Justice Elliot Johnston was a communist activist and later a successful judge of the Supreme Court of South Australia. All no doubt heard many cases where the government which appointed them was a party.

[20] All judges are ultimately appointed by the Executive and some come from occupations within the government itself, eg Crown prosecutors, Solicitors General. This has never been seen to suggest they should not hear cases concerning the government.”[20]

  1. [38]
    I have taken the oath of office as a judge of the Supreme Court of Queensland and a judge of this Court and the QIRC.  I have had no association with the ALP and no relevant association with Mr Russo since being appointed a judge in 2017.  The appeal principally concerns questions of statutory construction.  No reasonable, fairminded person would think that I would decide the appeal otherwise than on its merits based on my previous political affiliations and activity.

My letter of 22 June 2022

  1. [39]
    My letter:
    1. was submitted to the Committee by the Minister;
    2. was accepted by the Committee as part of its process;
    3. was considered by the Committee;
    4. is the subject of certification pursuant to s 55 of the Parliament of Queensland Act 2001 (POQ Act) that the letter was presented or submitted to the Committee and published under the authority of the Committee on 18 July 2022;
    5. is referred to in the report of the Committee;
    6. was referred to by various members during the debate in the Assembly on the bill.
  2. [40]
    Section 8 of the POQ Act provides:

 “8  Assembly proceedings can not be impeached or questioned

  1. (1)
    The freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly.
  2. (2)
    To remove doubt, it is declared that subsection (1) is intended to have the same effect as article 9 of the Bill of Rights (1688) had in relation to the Assembly immediately before the commencement of the subsection.” (emphasis added)
  1. [41]
    Section 9 defines “proceedings in the Assembly” as, relevantly here:

“9  Meaning of proceedings in the Assembly

  1. (1)
    Proceedings in the Assembly include all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee.
  2. (2)
    Without limiting subsection (1), proceedings in the Assembly include—
    1. giving evidence before the Assembly, a committee or an inquiry; and
    2. evidence given before the Assembly, a committee or an inquiry; and
    3. presenting or submitting a document to the Assembly, a committee or an inquiry; and
    4. a document tabled in, or presented or submitted to, the Assembly, a committee or an inquiry; and
    5. preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c); and
    6. preparing, making or publishing a document (including a report) under the authority of the Assembly or a committee; and
    7. a document (including a report) prepared, made or published under the authority of the Assembly or a committee. …” (emphasis added) [42] The Committee is a committee for the purposes of s 8 of the POQ Act.  The Committee’s investigations and report are “proceedings in the Assembly”.  So are the debates upon the Second Reading Speech on the bill.
  1. [43]
    In order to understand the significance of my letter to the present application, it is necessary to:
    1. analyse the letter;
    2. place it in the context of certain background facts;
    3. analyse the Committee report;
    4. analyse the debates on the bill;
    5. place those analyses in context with the appeal.
  2. [44]
    That squarely raises questions of parliamentary privilege and whether such analyses question or impeach the proceedings in the Assembly.
  3. [45]
    Mere proof of the fact that something has been delivered to the Committee or said in the Assembly is not a breach of parliamentary privilege.[21]  However, here, much more is required.  It is necessary to comment on the meaning of the letter and the impact that has on the fair-minded individual to assess any apprehension of bias.  That exercise, if taken against statements by the members of the Committee and members of the Assembly, may at least “question” those proceedings.[22]
  4. [46]
    It was submitted by the respondents that parliamentary privilege would operate so as to prevent Ms Gilbert from relying on the contents of the letter and, therefore, that aspect of her application which relies upon the letter simply fails.
  5. [47]
    Ms Gilbert seeks to rely on the letter as raising an apprehension of bias.  The letter has been the subject of proceedings in the Assembly and, to that extent, is therefore in the public domain.  Parliamentary privilege prevents Ms Gilbert developing her submission, prevents the respondents from developing a response to it, and prevents me from properly disposing of the application.   
  6. [48]
    That leads to a very unsatisfactory outcome.  It is a fundamental hallmark of judicial power that the power is exercised independently and impartially.  As observed in Johnson v Johnson,[23] following R v Watson; Ex parte Armstrong,[24] public confidence in the outcome of judicial proceedings cannot be assured unless the decision is taken, and seen to be taken, independently and impartially.
  7. [49]
    Here, a question has arisen that any exercise of the power may be affected by apprehended bias, but that issue cannot be resolved because of restrictions placed on the Court by the existence of parliamentary privilege over much of the relevant material.  The case involves a clash between two fundamental concepts: the necessity for judicial power to be exercised impartially, and to be seen to be exercised impartially, and the immunity of the parliamentary process from judicial scrutiny.  
  8. [50]
    It follows then that any decision is potentially, in the public eyes, tainted by unresolved allegations of an apprehension of bias, no matter how weak those allegations obviously are.

Conclusions

  1. [51]
    For reasons already explained, no reasonable apprehension of bias arises as a result of my former political activities or affiliations.
  2. [52]
    For the reasons I have explained, it is not possible to make positive findings in relation to any apprehension of bias which might arise as a result of my letter of 22 June 2022.  It is obviously undesirable for me to decide the appeal without being able to firstly resolve the allegations of an apprehension of bias.  
  3. [53]
    In the circumstances, it is appropriate that I do not decide the appeal.
  4. [54]
    Ms Gilbert, in her letter of 31 October 2022, indicated that the case ought to be determined on the material tendered to me and on a transcript of the appeal hearing before me.  That may be possible.  However, it is best to leave those procedural questions to the member of the Court who ultimately determines the appeal.
  5. [55]
    Costs of the application ought to be reserved to the final determination of the appeal.

Orders

  1. The hearing of the appeal be adjourned to be heard by a member of the Court other than the President.
  2. Costs are reserved.

Footnotes

[1] Industrial Relations Act 2016, Chapter 8, Part 1.

[2] Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255.

[3] Industrial Relations Act 2016, ss 278(1)(b), 279, 282, 284, 285.

[4] Industrial Relations Act 2016, s 295.

[5] A reference to “my letter”; the one to the Minister of 22 June 2022.

[6] (2000) 205 CLR 337.

[7] At [6].

[8] At [8].

[9] (1990) 170 CLR 70.

[10] At 87.

[11] (1994) 123 ALR 323.

[12] Section 412.

[13] Section 435. 

[14] Or other tribunal.

[15] Or other tribunal.

[16] Legal Profession Act 2007.

[17] The date of my letter.

[18] [2022] ICQ 2 at [14]-[26].

[19] GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2) [2022] ICQ 008.

[20] GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2) [2022] ICQ 008.

[21] Pebble v Television New Zealand Ltd [1995] 1 AC 321.

[22] Rowley v O'Chee [2000] 1 Qd R 207 at 222-223, Erglis v Buckley [2004] 2 Qd R 599 at [83]-[85].

[23] (2000) 201 CLR 488.

[24] (1976) 136 CLR 248 at 263.

Close

Editorial Notes

  • Published Case Name:

    Gilbert v Metro North Hospital Health Service & Ors

  • Shortened Case Name:

    Gilbert v Metro North Hospital Health Service

  • MNC:

    [2022] ICQ 35

  • Court:

    ICQ

  • Judge(s):

    Davis J

  • Date:

    23 Dec 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
2 citations
Jump To
Cite 1 - (2000) 205 CLR 337
Cite 2 - (2000) 205 CLR 337
Erglis v Buckley[2004] 2 Qd R 599; [2004] QCA 223
2 citations
Jump To
Cite 1 - [2004] 2 Qd R 599
Cite 2 - [2004] 2 Qd R 599
Gas & Fuel Corporation Superannuation Fund & Ors v Saunders & Anor (1994) 123 ALR 323
2 citations
Jump To
Cite 1 - (1994) 123 ALR 323
Cite 2 - (1994) 123 ALR 323
Gilbert v Metro North Hospital Health Service [2021] QIRC 255
2 citations
Jump To
Cite 1 - [2021] QIRC 255
Cite 2 - [2021] QIRC 255
GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] ICQ 2
2 citations
Jump To
Cite 1 - [2022] ICQ 2
Cite 2 - [2022] ICQ 2
GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2) [2022] ICQ 8
3 citations
Jump To
Cite 1 - [2022] ICQ 8
Cite 2 - [2022] ICQ 8
Cite 3 - [2022] ICQ 8
Johnson v Johnson (2000) 201 CLR 488
2 citations
Jump To
Cite 1 - (2000) 201 CLR 488
Cite 2 - (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
2 citations
Jump To
Cite 1 - (1990) 170 CLR 70
Cite 2 - (1990) 170 CLR 70
Prebble v Television New Zealand Ltd (1995) 1 AC 321
2 citations
Jump To
Cite 1 - (1995) 1 AC 321
Cite 2 - (1995) 1 AC 321
Rowley v O'Chee [2000] 1 Qd R 207
2 citations
Jump To
Cite 1 - [2000] 1 Qd R 207
Cite 2 - [2000] 1 Qd R 207
Watson; Ex parte Armstrong (1976) 136 CLR 248
2 citations
Jump To
Cite 1 - (1976) 136 CLR 248
Cite 2 - (1976) 136 CLR 248

Cases Citing

Case NameFull CitationFrequency
Gilbert v Metro North Health and Hospital Service (No. 2) [2023] ICQ 202 citations
1

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