Background
TESA Group sought recusal of a Deputy President of the Fair Work Commission on grounds of apprehended bias. The Deputy President, before her appointment to the Commission, had served as a Member of Parliament and shadow cabinet member, during which she publicly advocated for aligning pay rates between permanent workers and labour hire workers. TESA opposed applications for regulated labour hire arrangement orders that the Deputy President was hearing, arguing her prior advocacy created a perception she might not be impartial. To support the recusal application, TESA relied on Hansard extracts containing the Deputy President’s parliamentary comments about pay equity and a question she had asked the Prime Minister about wage disparities between permanent and labour hire workers. The primary judge dismissed the recusal applications and rejected TESA’s judicial review challenge, concluding apprehended bias could not be established even if the Hansard extracts were considered.
The respondent Mining and Energy Union filed a notice of contention on appeal arguing the Hansard extracts should never have been admitted into evidence because they were protected by parliamentary privilege under section 16(3) of the Parliamentary Privileges Act 1987 (Cth). The preliminary issue of parliamentary privilege required determination before the substantive appeal could proceed, as it bore directly on the strength of TESA’s recusal case.
The Court’s Holding
The Full Court (Bromwich, Kennett and Horan JJ) upheld the first ground of the notice of contention, holding that the Hansard extracts should not have been admitted into evidence. Section 16(3) of the Parliamentary Privileges Act 1987 (Cth) prohibits tendering evidence concerning parliamentary proceedings “for the purpose of” drawing or inviting the drawing of inferences or conclusions based on what was said in Parliament. The court found TESA sought to use the Hansard extracts precisely for that prohibited purpose: to invite the inference that the Deputy President, based on her prior parliamentary advocacy, would approach the labour hire applications with a predisposed view favourable to pay equity.
The court acknowledged that Hansard may sometimes be used to prove bare facts—that something was stated or that documents were tabled—without engaging parliamentary privilege. However, the court distinguished such limited uses from cases requiring examination of what was said in order to assess credibility, motive, or proper meaning. Here, accepting TESA’s use of the Hansard would require the court to examine the Deputy President’s parliamentary statements, assess her motivations and positions, and draw inferences about her likely judicial approach—precisely the examination of parliamentary proceedings that the privilege protects against.
The court drew on principle established in R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc, holding that there is no distinction between using parliamentary statements to support a cause of action arising outside Parliament and using them to support grounds for judicial review. Both require the court to do more than note that a statement was made; both require examining the statement’s meaning and proper inferences, thereby invading the right to free speech in Parliament.
Key Takeaways
- Parliamentary privilege under section 16(3) of the Parliamentary Privileges Act 1987 (Cth) protects statements made in Parliament from being used to draw inferences about a speaker’s likely conduct or impartiality in later proceedings.
- While Hansard may prove bare facts (that something was stated), courts cannot admit it where doing so requires examining the statement’s meaning, assessing the speaker’s motivations, or drawing inferences about implications for future conduct.
- The prohibition applies equally to judicial review proceedings as to other civil litigation—parliamentary statements cannot support grounds for relief based on a decision-maker’s prior advocacy in Parliament.
- Courts must uphold parliamentary privilege by controlling the purposes for which evidence may be tendered, not merely by limiting which evidence can be introduced.
Why It Matters
This decision clarifies the scope of parliamentary privilege in judicial proceedings and establishes meaningful limits on using legislators’ parliamentary statements in recusal and apprehended bias applications. The ruling prevents courts from inferring judicial bias or predisposition based on prior parliamentary advocacy, thereby protecting the constitutional separation between Parliament and the judiciary. For practitioners, the decision confirms that even when attempting to prove apprehended bias, reliance on Hansard to demonstrate a judge’s or decision-maker’s prior advocacy or stated positions will be precluded by parliamentary privilege if the evidence is tendered to support inferences about impartiality.
The judgment reinforces that parliamentary privilege is not merely an evidentiary rule of admissibility but a structural constitutional protection. Courts must respect the right to free speech in Parliament by declining to examine, discuss, or adjudge parliamentary proceedings, even in contexts (such as assessing judicial impartiality) where such examination might seem relevant to the dispute before them.
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