Peter Heerey QC Report Into Michael Lawler

REPORT OF INQUIRY INTO COMPLAINTS ABOUT

THE HONOURABLE VICE PRESIDENT MICHAEL LAWLER OF THE

FAIR WORK COMMISSION AND RELATED MATTERS

THE HONOURABLE PETER HEEREY AM QC

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TABLE OF CONTENTS

Page

1 INTRODUCTION 1

1.1 Appointment 1 1.2 Terms of reference 1 1.3 Procedures 2 1.4 Dramatis personae 7 1.5 The Four Corners program 9

2 SUMMARY OF CONCLUSIONS 10

2.1 The Carrigan complaints 10 2.2 Complaint investigation processes 10 2.3 Absence from duty 11 2.4 Conflicts of interest 11 2.5 The Four Corners program 12 2.6 Removal on the grounds of misbehaviour? 12 2.7 Removal on the grounds of incapacity? 13

3 PROVED MISBEHAVIOUR OR INCAPACITY 14

3.1 Misbehaviour 14 3.2 Incapacity 19 3.3 Reasonable basis 21

4 THE CARRIGAN COMPLAINTS; TERM OF REFERENCE 1 22

4.1 Introduction 22 4.2 The conference of 27 May 2014 23 4.3 Misbehaviour? 35 4.4 Management of complaint by FWC 37 4.5 Ms Carrigan’s complaint to Minister 39 4.6 Conclusions as to management of complaint 42

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5 INVESTIGATION PROCESSES; TERM OF REFERENCE 2 45

5.1 Present processes 45 5.2 AIRC appointees holding office in FWC 47 5.3 Suggestions for change 48

6 ABSENCE FROM DUTY; TERM OF REFERENCE 3 53

6.1 Processes for approval of sick leave 53 6.2 Periods of absence 2014-2015 54 6.3 Misbehaviour? 56

7 CONFLICTS OF INTEREST; TERM OF REFERENCE 4 61

7.1 Disclosure of relationship 61 7.2 Conferences in August 2008 61 7.3 Ostensible bias and the conciliation process 64 7.4 Conduct of conciliation conferences 68 7.5 August 2008 conferences –Misbehaviour? 69 7.6 Assistance to Ms Jackson in litigation 72 7.7 Litigation assistance –Misbehaviour? 104 7.8 FWC processes to manage conflicts 106

8 THE FOUR CORNERS PROGRAM; TERM OF REFERENCE 6 110

8.1 Offensive language 110 8.2 Comments about FWC and trade unions 110 8.3 Conflicts of interest 111 8.4 Secret tape recordings 113 8.5 Mr David Rofe QC 116 8.6 Receipt of HSU monies 116 8.7 Taking leave to “help your partner” 118 8.8 Willing involvement in program 118 8.9 Public reaction 118 8.10 Misbehaviour? 122

9 INCAPACITY; TERM OF REFERENCE 5 131

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1 INTRODUCTION

1.1 Appointment

[1] On 19 October 2015 I was appointed by the Minister with portfolio

responsibility for the Fair Work Commission, Senator the Honourable

Michaelia Cash, to inquire into and report on complaints about the

Honourable Michael Lawler, Vice President of the Commission, and

related issues.

1.2 Terms of reference

[2] The terms of reference for this inquiry are:

(1) matters raised in Ms Jane Carrigan’s complaints to the Minister

for Employment of 6 July 2015 and 9 July 2015 about Vice

President Lawler and about the FWC’s management of her initial

complaint to the President of the FWC;

(2) the processes of the FWC to investigate complaints and

allegations made against members of the FWC, including those

appointed under previous workplace relations legislation;

(3) the circumstances of Vice President Lawler’s absence from duty

at the FWC during 2014 and 2015 including, but not limited to,

the reasons behind the specific leave taken by Vice President

Lawler that are related to the FWC;

(4) any actual or perceived conflicts of interest on the part of Vice

President Lawler that may affect the standing of the FWC, and

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the appropriateness of any process in the FWC to manage such

conflicts;

(5) whether there is a reasonable basis for both Houses of Parliament

to consider requesting the Governor-General to remove Vice

President Lawler from the FWC on the grounds of proved

misbehaviour or incapacity;

(6) any other matters considered relevant.

1.3 Procedures

[3] In conducting this inquiry I do not have any powers, statutory or

otherwise, beyond those of any citizen. In particular, I do not have

powers to compel evidence, order searches and seizures, or administer

oaths, such as are available to a Royal Commission or like body. I am

not bound by the rules of evidence. I do not have the powers of a judge

or arbitrator to make binding determinations of fact or law.

[4] Nevertheless it seemed reasonable that I should give Vice President

Lawler the opportunity to respond to any potential opinions or

recommendations adverse to him. Due to Vice President Lawler’s

health problems, this process turned out to be more complicated than

originally anticipated.

[5] The terms of my appointment sought a report by Friday 11 December

2015, although the Minister requested me to let her know if I required

more time.

[6] On 28 October 2015 I sent to Vice President Lawler an email

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containing the Terms of Reference and a substantial list of questions. It

would have been apparent from some of those questions what issues

might give rise to adverse opinions or recommendations. A response was

requested by 12 November 2015.

[7] On 11 November I received an email from solicitors on behalf of Vice

President Lawler seeking an extension of three months. The email

attached a report dated 9 November 2015 from Vice President Lawler’s

treating psychiatrist, Dr Irwin Pakula MB BS FRANZCP.

[8] On 12 November I replied to the solicitors agreeing to the request for a

three months extension. Subsequently, at my request, the Minister

agreed to an extension for the time for my report to 29 February 2016.

[9] On 24 December I received an email from Justice Ross, President of the

FWC, enclosing a certificate from Dr Pakula stating that Vice President

Lawler was unfit to attend work from 27 October 2015 to 26 February

2016

Redacted: Personal medical/health information


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[10] By this stage the questions sent in October had been overtaken by

events. Much of the information then sought was now non-contentious

and/or had been obtained from other sources. So on 24 December I

emailed Vice President Lawler advising my reporting date had already

been put back from 11 December 2015 to 29 February 2016 but could

not be postponed indefinitely. I asked him to disregard the questions

sent to him on 28 October 2015 and advised I would send him a draft

report in mid January seeking a response by 12 February 2016.

[11] On 19 January 2016 I provided Vice President Lawler with a draft of

my report and invited him to make written submissions and provide me

with any other evidence in response to the draft report by 12 February

2016. The draft recommended adverse action only in respect of two

conciliation conferences in August 2008 (see Sections 7.1-7.5 below)

and the Four Corners program (see Section 8 below). It did not propose

a finding of permanent incapacity.

[12] On 21 JanuaryVice President Lawler replied stating that his lawyers,

acting without payment, were not in a position to prepare a draft

response by 12 February,

He sought a meeting in which he could make an oral

presentation.

[13] I replied on 21 January advising that I could not postpone production of

my report any further but was agreeable to an oral presentation, This

could take place at the Department of Employment’s Sydney premises


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on 4 February 2016. Vice President Lawler replied on 22 January

accepting those arrangements.

[14] On 27 January I received a lengthy email from Vice President Lawler. In

essence he said:

• He proposes to resign.

• His condition prevents him from making a presentation at the proposed interview on 4 February.

• If a final report is to be competed he wishes to respond in detail “when he has recovered sufficient strength”.

• Re the August 2008 conciliation conferences there is a “background” including advice from a Federal Court judge.

• Re the Four Corners program, it was not a fair representation of the information he conveyed to the ABC. (In respect of this issue and the August 2008 conferences the email contained some more detail, which will be discussed when I come to deal with the substance of those matters.)

• He wants to know whether the Minister wants a final report prepared.

[15] On 9 February I received a report from Dr Pakula which stated that



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[16] I shall return to this report when discussing the substantive issue of

incapacity (Section 9). For the moment I note that the report states that

[17] I have consulted with the Department who are agreeable to my

proceeding with my report. While I appreciate that not all of the

responses raised by Vice President Lawler have been explored and

tested, the reality is that such an exercise could not be completed in the

foreseeable future, and probably not at all, given Vice President

Lawler’s condition.

[18] In a context where I cannot make binding determinations, but only

express an opinion whether there are reasonable grounds for Parliament

to consider taking certain steps, I am satisfied that I have a sufficient

basis to express such an opinion.


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1.4 Dramatis Personae

(a) Vice President Lawler

[19] In 2002 Mr Michael Lawler, then a practising barrister in Sydney, was

appointed a Presidential Member of the Australian Industrial Relations

Commission under the Workplace Relations Act 1996 (Cth). As a

Presidential Member, he had the rank, status and precedence of a Judge

of the Federal Court of Australia.1

[20] Under the Fair Work Act 2009 (Cth) the AIRC was replaced by Fair

Work Australia (now called the Fair Work Commission). Vice

President Lawler is now a Deputy President of that Commission. On

becoming a Commissioner of the FWC, Vice President Lawler’s terms

and conditions as a Presidential Member of the AIRC were preserved

by the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009 (Cth), sch 18, item 2(1)(a).

[21] Those terms and conditions included the restriction that he could only be

removed from office by the Governor-General “on an address praying

for removal on the grounds of proved misbehaviour or incapacity being

presented to the Governor-General by both Houses of Parliament in the

same session.”2

1 Workplace Relations Act s 63(2) 2 Workplace Relations Act s 82

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(b) Justice Iain Ross AO

[22] In 2012 Justice Iain Ross AO was appointed President of Fair Work

Australia, as the Fair Work Commission was then called. He was also

appointed a Judge of the Federal Court of Australia.

[23] Previously he had held appointments as a Judge of the Supreme Court of

Victoria (2009) and Vice-President of the AIRC (1994).

(c) Ms Kathy Jackson

[24] From 1992 Ms Jackson was an official of a branch of the Health

Services Union. In 2008 she was appointed national secretary of the

union.

[25] She achieved national prominence by disclosing serious misuse of

Union funds by other officials. One, a former president of the HSU, was

convicted and sentenced to imprisonment. Another, a member of the

Commonwealth Parliament, was also convicted.

[26] However, Ms Jackson herself was subsequently alleged to have misused

union funds. The HSU brought civil proceedings against her. On 19

August 2015, in the Federal Court, Justice Tracey gave judgment for the

HSU against Ms Jackson for $1,406,538.16 plus interest and costs.3 His

Honour found Union funds were used for private purposes, including

overseas holiday travel, entertainment, jewellery, and school fees. On

3 Health Services Union v Jackson (No 4) [2015] FCA 865.

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17 December 2015, the Full Court of the Federal Court dismissed Ms

Jackson’s appeal from this decision.4

[27] At some time in about March 2008 Ms Jackson and Vice President

Lawler commenced a personal relationship, which still continues.

1.5 The Four Corners Program

[28] A Four Corners program about Vice President Lawler and Ms Jackson

was broadcast on ABC TV on the evening of Monday 19 October 2015.

I had been appointed to conduct this inquiry earlier that day. The

program mainly deals with Vice President Lawler’s conduct of his office

at the FWC and his relationship with Justice Ross. In the program Vice

President Lawler makes highly critical comments about the FWC and

trade unions in general. He also broadcasts secretly recorded telephone

conversations with Justice Ross and criticises him for allegedly reneging

about assurances on sick leave.

[29] I consider the program falls within Terms of Reference 5 and 6.

4 Jackson v Health Services Union [2015] FCAFC 188.

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2 SUMMARY OF CONCLUSIONS

2.1 The Carrigan complaints

[30] There is no reasonable basis for the Houses of Parliament considering

that, in a telephone conference held on 27 May 2004 with Ms Carrigan

and her client, Vice President Lawler engaged in misbehaviour in any

relevant sense.

[31] Vice President Lawler’s conduct, and in particular criticising Ms

Carrigan’s professional competence in front of her client, may have been

embarrassing and hurtful for Ms Carrigan, but it was conduct of a kind

not at all unusual for mediators or conciliators and was driven by Vice

President Lawler’s concern for the interests of the client.

[32] In managing Ms Carrigan’s complaints, the FWC, and in particular

Justice Ross, acted fairly and reasonably, especially having regard to

Vice President Lawler’s ongoing medical condition and the delay

necessarily caused thereby.

2.2 Complaint investigation processes

[33] The processes of the FWC are adequate, and are consistent with those

recently provided by statute for other comparable federal judicial and

quasi-judicial bodies.

[34] The exceptional circumstances of the present case do not disclose any

inadequacy in the processes.

[35] However, the provisions of the Judicial Misbehaviour and Incapacity

(Parliamentary Commissions) Act 2012 (Cth) should be extended to

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apply to termination proceedings against persons who are not judges but

hold office subject only to termination by the Governor-General on

addresses of both Houses of Parliament.

2.3 Absence from duty

[36] Vice President Lawler has for a lengthy period suffered from mental

illness of considerable severity.

[37] His absences from duty were reasonable in the light of his medical

condition and were supported by an appropriately qualified specialist.

[38] The assertion that he was not really sick because he was able to assist

Ms Jackson in her litigation is rejected.

2.4 Conflicts of interest

[39] This issue arises in two separate contexts.

[40] First, in August 2008 Vice President Lawler convened and conducted

two conciliation conferences at which Ms Jackson appeared for one of

the parties. This was approximately five months after they had

commenced a personal relationship, but there was no disclosure to the

parties or the AIRC of this obvious conflict. The subsequent revelation

of this conflict of interest would have been highly damaging to Vice

President Lawler’s reputation and that of the AIRC.

[41] Secondly, in 2014 and 2015, while on sick leave, Vice President Lawler

actively assisted Ms Jackson in preparation for appearances before the

Royal Commission into Trade Union Governance and Corruption, and

in the litigation brought against her in the Federal Court of Australia by

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the HSU. He appeared once on her behalf in 2014 via telephone in a

procedural hearing in the Federal Court, and then twice in 2015 when

his own interests were in issue. His involvement attracted much hostile

media attention.

The first episode does provide a reasonable basis for Parliament

considering a request for removal on the ground of proved

misbehaviour. The second does not.

[42] Current arrangements in the FWC for managing conflicts of interest are

appropriate.

2.5 The Four Corners program

[43] Vice President Lawler’s participation in the Four Corners program was

behaviour of a standard far below that which the Australian public is

entitled to expect from a person holding his office.

[44] Amongst other things, he unlawfully recorded and broadcast a telephone

conversation with Justice Ross. In doing so he displayed personal

ingratitude and disloyalty. This conduct was dishonourable. Further, he

demonstrated feelings of suspicion and hostility towards trade unions in

general, a category of litigant likely to be regularly engaged in matters

before the FWC. He gratuitously disparaged the FWC, and also used

offensive language.

2.6 Removal on the grounds of misbehaviour?

[45] For the forgoing reasons, and as discussed more fully in this report, it is

my opinion that by reason of his failure to disclose his relationship with

Ms Jackson in the conciliation conferences in August 2008, and his

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involvement in the Four Corners program and the matters broadcast

therein, there is a reasonable basis for both Houses of Parliament to

consider requesting the Governor-General to remove Vice President

Lawler from the FWC on the grounds of proved misbehaviour.

2.6 Removal on the grounds of incapacity?

[47] I consider there is a reasonable basis for both Houses of Parliament to

consider requesting the Governor-General to remove Vice President

Lawler from the FWC on the grounds of proved incapacity.

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3 PROVED MISBEHAVIOUR OR INCAPACITY

3.1 Misbehaviour

[48] The test of “misbehaviour” applicable to Vice President Lawler is

essentially the same as that governing the removal of High Court and

other federal judges under s 72(ii) of the Constitution. It underpins the

independence of the judiciary, a cornerstone of Westminster

democracies, extending back to the Act of Settlement 1701 (Imp).

[49] In the context of the possible removal of High Court Justice Lionel

Murphy, s 72(ii) was in 1986 considered by a Parliamentary

Commission of Inquiry consisting of retired judges Sir Richard

Blackburn OBE, the Honourable Andrew Wells QC and Sir George

Lush.

[50] In particular, that Commission considered the argument advanced on

behalf of Justice Murphy that “misbehaviour” was confined to criminal

offences.

[51] In scholarly and convincing rulings the Murphy Commission rejected

that contention.5

[52] Sir Richard Blackburn said 6 that “proved misbehaviour”

5 I am indebted to Mr Stephen Charles QC and Justice of Appeal Mark Weinberg, who

both appeared as counsel before the Murphy Commission, for drawing my attention to this valuable resource

6 At 18

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means such misconduct, whether criminal or not, and

whether or not displayed in the actual exercise of judicial

functions, as being morally wrong, demonstrates the

unfitness for office of the judge in question.

(In this and subsequent quotations emphasis has been added.)

[53] Mr Wells’ opinion contains important insights into the concept. After

stressing the importance of judicial independence, Mr Wells said: 7

The same public who must respect a High Court judge’s

independence is, in my view, entitled to expect from him a

standard of competence and behaviour that are

consonant with the national importance of his judicial

function.

The office of a judge differs markedly from that of many

other public officials. The performance of his duty calls

on him to display, of a high order, the qualities of

stability of temperament, moral and intellectual courage

and integrity, and respect for the law.

…

It is not surprising to find, therefore, that if, in the

general affairs of life beyond his judicial functions, a

judge displays aberrations of conduct so marked as to

give grounds for the view that he lacks the qualities fitting

7 At 10

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him for the discharge of his office, the question is likely to

arise whether he should continue in it.

…

But there is, I have no doubt, a clear distinction between,

say, mere eccentricity of conduct, or the fervent

proclamation of personal views upon some matter of

public concern, on the one hand, and plain impropriety

on the other.

[54] Mr Wells8 saw the question as raising questions of fact and degree:

Somewhere in the gamut of judicial misconduct or

impropriety, a High Court judge’s conduct, outside the

exercise of his judicial function, that displays unfitness to

discharge the duties of his high office can no longer be

condoned, and becomes misbehaviour so clear and

serious that the judge guilty of it can no longer be trusted

to do his duty. What he has done then will have

destroyed public confidence in his judicial character, and

hence in the guarantee that that character should give

that he will do the duty expected of him by the

Constitution. At that point, section 72 operates.

[55] Sir George Lush9 pointed out that judges must be safe from the

possibility of removal because their decisions are adverse to the wishes

8 At 11 9 At 8

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of the government of the day and that s 72 affords this safety by

requiring proof of “misbehaviour”. However, judges

cannot be protected from the public interest which their

office tends to attract. If their conduct, even in matters

remote from their work, is such that it would be judged by

the standards of the time to throw doubt on their own

suitability to continue in office, or to undermine their

authority as judges or the standing of their courts, it may

be appropriate to remove them.

[56] Relevantly for present purposes, I think it can be said that personal

qualities the Australian public are entitled to expect of a judge, or a

person holding equivalent tenure, include fairness, rationality, stability,

and dignity.

[57] By the last-mentioned, I do not mean Grand Pooh-Bah pomposity, or a

sheltered life-style away from ordinary engagement with the rest of the

community, but a basic decency, inner calmness, self-awareness and

self-respect.

[58] Sufficiently serious and public departures from those standards could

constitute misbehaviour. Particularly is this so when the conduct in

question is linked to judges’ conduct in office and not “remote from

their work”.

[59] Apart from the character of misbehaviour in this context, there is the

aspect of the degree of seriousness. At the federal level there has been

only one proposed removal, that of Justice Lionel Murphy, referred to

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above. His Honour died before the matter could be considered by

Parliament. In respect of State and Territory judges, at least since

Federation, there have been only two cases where a motion for removal

of a superior court judge reached a Parliament. One in Queensland was

passed, one in New South Wales was not.

[60] This scarcity of previous examples in the 115 years since Federation

rather indicates that the extreme remedy of Parliamentary removal is

reserved for serious cases. The two Houses and the Governor-General

are not intended to act as a routine disciplinary tribunal for the judiciary.

[61] As well as the expectations the community has for the conduct of judges

as individuals, there is the equally important issue of the standing of

courts, and comparable bodies like the Fair Work Commission, as

institutions.

[62] No doubt there is the possibility of differences of opinion and

personality clashes in any institution. But in the case of courts, or court-

like bodies, the community is entitled to expect that members will treat

each other in a civilised and professional manner, with loyalty to their

institution and scrupulous regard for the public’s confidence.

[63] The Fair Work Commission is the latest in a line of specialist industrial

tribunals in Australia, going back to the early days of Federation,

commencing with the Commonwealth Court of Conciliation and

Arbitration (1904). In the aphorism of one of its first members, Justice

19

Henry Bournes Higgins, this was to be “A New Province for Law and

Order”.10

[64] Probably uniquely, at least in countries in the common law tradition,

specialist industrial tribunals, and in particular the Fair Work

Commission and its predecessors, have had a particularly high

prominence in Australian political, economic and social life. In part this

may be due to the “Australian Settlement” which Paul Kelly discusses in

The End of Certainty (1992). For much of the 20th Century, in return

for high wages in a largely unionised workforce regulated by

predecessors of the Fair Work Commission, and protection by restrictive

immigration policies (including, up until the 1960s, the White Australia

Policy), employers enjoyed the protection of high tariff barriers.

[65] This background tends to emphasise the public importance of the role of

members of the Fair Work Commission and, correspondingly, the need

for public confidence in their character and competence.

3.2 Incapacity

[66] Sections 641 and 642 of the Fair Work Act make provision for

termination (s 641) and suspension (s 642) of Members of the Fair Work

Commission on the grounds of “proved misbehaviour” or being “unable

to perform the duties of his or her office because of physical or mental

incapacity.” However, Vice President Lawler’s rights are determined by

his preserved rights under s 82 of the Workplace Relations Act. The

relevant concept is the simple one of “proved incapacity”.

10 (1915) 29 Harvard Law Review 13

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[67] In this context, “incapacity” means inability to carry out the duties of a

Vice President of the Commission – in essence no different from that

prescribed by s 642.

[68] The capabilities needed by a judge or holder of equivalent office are

primarily those of the mind: concentration, memory, the capacity for

analytical and rational thought. Theoretically some quite severe forms

of physical disability may not prevent the effective performance of the

judge’s task. Conversely, normal outward appearance may conceal

severe mental disability which amounts to incapacity in the relevant

sense.

[69] The term “incapacity” takes some flavour from its association with

“misbehaviour” (noscitur a sociis). Misbehaviour connotes wrongful

conduct sufficiently serious to remove the judge permanently. Likewise

incapacity is to be considered in the context of possible permanent

removal.

[70] How long lasting must this incapacity be? Sometimes, as in the present

case, the answer will turn on expert medical prognosis, which may

depend on future imponderables and uncertainties. It is not realistic to

read into the statute some arithmetical figure in terms of months or even

years.

[71] Given its historical background as a constitutional guarantee of judicial

independence, the concept of “incapacity”, like that of “misbehaviour”,

should be given a strict interpretation. In terms of duration, I think the

condition of incapacity needs to be permanent, or close to it.

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3.3 Reasonable basis

[72] My terms of reference do not require me to determine whether or not

Vice President Lawler is guilty of misbehaviour or suffers from

incapacity. Rather, my opinion is sought as to whether there is “a

reasonable basis” for Parliament to “consider” requesting the Governor-

General to remove him on such grounds.

[73] As already mentioned, I do not have the power of a judge or arbitrator to

make legally binding findings of fact. However, insofar as any question

of fact arises, in expressing my opinion I intend to apply by analogy the

civil standard of the balance of probabilities, while having regard to the

seriousness of the allegation and the consequences of acceptance. 11

11 Briginshaw v Briginshaw (1938) 60 CLR 336

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4 THE CARRIGAN COMPLAINTS; TERM OF REFERENCE 1

4.1 Introduction

[74] Ms Jane Carrigan carries on a business of providing industrial advocacy

services in the Northern Territory.

[75] On 27 May 2014, Ms Carrigan participated in a telephone conference in

the FWC that was conducted by Vice President Lawler. Ms Carrigan

initially complained to Justice Ross about the conduct of Vice President

Lawler in that conference. Unsatisfied with the management of her

complaint, Ms Carrigan then wrote to the Minister for Employment on 6

July 2015, and again on 9 July 2015, requesting the Minister to

investigate Vice President’s Lawler conduct on 27 May 2014, and to

investigate the FWC’s management of her initial complaint.

[76] Accordingly, Term of Reference 1 requires me to investigate two

separate matters:

[a] the conduct of Vice President Lawler in the conference of 27

May 2014; and

[b] the FWC’s management of Ms Carrigan’s complaint about Vice

President Lawler’s conduct in that conference.

[77] To the extent that Ms Carrigan’s letters raise other issues about Vice

President Lawler’s conduct beyond the conference of 27 May 2014,

some are caught by other terms of reference, and will be dealt with

elsewhere in this report.

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4.2 The conference of 27 May 2014

[78] On 6 May 2014, Ms Carrigan filed an application with the FWC on

behalf of an Applicant under s 365 of the Fair Work Act, that is to say

an application for the Commission to deal with a dispute concerning the

alleged dismissal of a person in contravention of Part 3.1 of the Act.

[79] The application alleged constructive dismissal of the Applicant on 1 July

2013. It was alleged that this act of constructive dismissal constituted

“adverse action” taken for an improper reason in contravention of s 340

of the Act. The application did not, however, specify the Applicant’s

“workplace right” as is necessary to do when alleging a contravention of

s 340, nor did it allege any facts or matters upon which it was alleged

that the Applicant was constructively dismissed because of that

workplace right.

[80] The relief sought in the application was as follows:

[a] 4 weeks notice period payment;

[b] annual leave entitlements of 380 hours;

[c] leave loading on that annual leave of 17.5%;

[d] interest on all entitlements; and

[e] filing costs and advocate’s fees.

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[81] On 13 May 2014, the Respondent employer filed a Response to Ms

Carrigan’s application in the required Form F8A. The Response set out

the following facts and circumstances:

[a] The Applicant, initially employed by the Respondent as a carer

in Darwin, Redacted: Personal information of an unrelated third party

25

[g] At the time of the application, the Applicant was still on the

Respondent’s payroll, and was receiving workers’ compensation

benefits.

[h] The Applicant had not been paid any termination entitlements

because she remained an employee of the Respondent.

[i] The Applicant had lodged a complaint with the Australian

Human Rights Commission, alleging the same facts and matters

as those contained in the application brought before the Fair

Work Commission, and that complaint had not yet been

resolved.

[82] Vice President Lawler conducted a telephone conference on 27 May

2014. There is, as far as I am aware, no independent transcript or

recording of the conference. Vice President Lawler’s Associate made a

note which reads:

During the Conciliation Conference of 27 May 2014 the

Applicant’s Representative sought to amend the

Applicant’s Application from s 365 to s 372. The

Application to amendment [sic] was allowed by Lawler

VP.

[83] On 13 June 2014, Ms Carrigan submitted to the FWC a detailed

statement supporting her complaint against Vice President Lawler and

Redacted: Personal information of an unrelated third party

26

providing her version of the telephone conference on 27 May. In her

statement, Ms Carrigan gives an account of the sequence of the

conference. According to that statement the conference comprised four

parts. In the first part all parties were present. It ran for approximately

33 minutes. In the second part Vice President Lawler spoke with the

Respondent’s solicitor for about 15 minutes. In the third part Vice

President Lawler spoke with the Applicant and Ms Carrigan for

approximately 33 minutes. In the fourth part Vice President Lawler

again spoke with the Respondent’s solicitor.

(a) Ms Carrigan’s version of events

[84] Ms Carrigan’s version of events about what transpired in the first part of

the conference is as follows:

[a] Vice President Lawler had classified the application as an

application under s 365 of the Act, when it ought more

appropriately be listed as an application under s 372.

[b] Vice President Lawler said: “Ms Carrigan, you cannot be a little

bit pregnant – either your client is dismissed or she is not”.

[c] She tried to dispute that proposition, but Vice President Lawler

said that it was “plain as a pikestaff” that the Applicant had not

been constructively dismissed, given that the Applicant

continued to receive worker’s compensation and a pay slip from

the employer.

27

[d] Because it was self-evident to her that the matter would not

progress until she confirmed whether the Applicant was

dismissed or not, she conceded that the Applicant was still an

employee, and had not been dismissed.

[e] She made the concession because she was only interested in

securing the Applicant’s outstanding employment entitlements,

and did not intend to rely in any respect upon an “unfair

dismissal claim”.

[f] Vice President Lawler then demanded to know the grounds upon

which she had made the application, and when she tried to

explain, Vice President continuously stated that he did not

understand the application.

[85] Ms Carrigan then provided her version of events about what transpired

in the third part of the conference. This conversation was between Vice

President Lawler, Ms Carrigan and the Applicant. She said that:

[a] Vice President Lawler said that after discussing the matter with

the Respondent’s solicitor he had a proposal to put to the

Applicant in aid of settling the matter. The proposal was that the

parties would execute a deed of settlement, in which the

Applicant would receive all entitlements owed, the Applicant

would resign by consent, the Applicant would be paid an

additional sum of severance pay, the complaint before the

Australian Human Rights Commission would be withdrawn, and

the parties would execute a mutual release, but the Applicant

would retain any workers’ compensation rights.

28

[b] She said that if she was provided with a copy of the Deed and a

breakdown of entitlements, she would undertake to go away and

give it serious consideration, together with the Applicant.

[c] Vice President Lawler then said he was going to do something

that he had not done in 10 years, before proceeding to tell the

Applicant that she was “utterly incompetent”.

[d] Vice President Lawler then said:

(i) he was happy to assist the Applicant, even if it meant

dipping into his own sick leave;

(ii) the Applicant’s claim of disability discrimination was

hopeless;

(iii) he was “a big fish in a very tiny pond”, and “2nd in

charge of the FWC”, but he was “not God’s gift to the

law”;

(iv) it was a “no-brainer” that the Applicant had not been

constructively dismissed;

(v) Ms Carrigan could not represent the Applicant in court,

and the Applicant would need a lawyer, if not self-

represented;

(vi) it would be expensive to continue the matter in court,

with a good QC charging $12,000 per day, a baby

29

barrister costing $2,000 per day, and it costing $20,000

just to get to the door step of a court;

(vii) by way of example, he received a huge remuneration as

paid to him by the Parliament, yet he still had to dip into

his mortgage because of legal matters that he was

involved in with his partner.

[e] Vice President Lawler asked the Applicant whether these fees

could be afforded, to which the Applicant responded

equivocally.

[f] Vice President Lawler said that it appeared that Ms Carrigan had

previously indicated that her fees were $12,000, and that while

he did not know the arrangement between Ms Carrigan and the

Applicant, and did not want to know, Ms Carrigan would not be

getting her fees.

[g] She then said that whilst they respected Vice President Lawler’s

expertise, his analysis was not fully or accurately informed, and

that she wished to protest his characterisation of her as “utterly

incompetent”.

[h] Vice President Lawler asked what was wrong with what he had

said, particularly as it was “only between us” and had not been

said in open conference or in front of the media.

[i] Vice President Lawler then said that he would tell the

Respondent that the conference had failed.

30

[j] She asked Vice President Lawler whether he was refusing to

request the Respondent provide a breakdown of entitlements and

copy of the proposed settlement deed, to which Vice President

Lawler said that it was convenient for the Fair Work

Commission to sign off on the dispute in the one sitting.

[k] Vice President Lawler sought confirmation from her whether the

application was being amended to an application being made

under s 372.

[l] When she requested leave to amend, Vice President identified a

number of relevant provisions contained within the Act.

[86] Ms Carrigan said that the third part of the conference then concluded

with the Applicant directly asking Vice President Lawler the basis on

which he had formed his views about the factual aspects of the case, to

which Vice President Lawler replied that he had relied on a brief review

of the filed documentation.

(b) Vice President Lawler’s response

[87] On 8 April 2015, in a letter to Justice Ross, Vice President Lawler

provided a detailed response to the allegations of Ms Carrigan.

[88] In summary, that response was to the following effect:

[a] Before he conducted the conference, he examined the file, and

saw that there was a jurisdictional problem, in that dismissal was

31

alleged to have taken effect on 1 July 2013, which meant the

application was well out of time.

[b] Further, the file revealed that the Applicant had an ongoing

complaint before the Australian Human Rights Commission,

which had not been disclosed in the application, and which

meant the application was prohibited by ss 725 and 732 of the

Fair Work Act.

[c] When the conference began, he spent some time trying to

ascertain the facts that were not in dispute between the parties.

[d] Ms Carrigan was then invited to articulate the actions of the

Respondent that could provide a basis for contending that there

had been a constructive dismissal of the Applicant, but was

unable to do so.

[e] Ms Carrigan accepted during the conference that the Applicant

had not been dismissed and that there was no basis for

continuing to advance the contrary contention.

[f] The Respondent did not object to the Applicant being granted

leave to amend the application to one made under s 372, and

upon Ms Carrigan seeking leave to amend, he granted that leave

even though the application was based solely on a contravention

of s 340 of the Act. But throughout the conference, Ms Carrigan

was unable to identify the way in which there could have been a

breach of the section.

32

[g] It was clear that the principal purpose for which the application

under s 365 of the Act had been made was to obtain payment of

the Applicant’s accrued entitlements, even though an application

under that section was not an appropriate vehicle for that

purpose.

[h] It emerged during the hearing that the Applicant did not have

money to pay Ms Carrigan’s outstanding fees of $12,000, and

further fees that were expected to be incurred.

[i] He asked Ms Carrigan about the basis for the previous

application that had been made to the Australian Human Rights

Commission, to which Ms Carrigan said that the Applicant’s

mental health condition was the product of a failure by the

Respondent to provide the Applicant with the level of support

that it had allegedly promised to provide, which condition had

been exacerbated by the Respondent’s actions in seeking to

redeploy the Applicant.

[j] He expressed the view that the contention that the Respondent

had discriminated against the Applicant on the grounds of mental

health was without any substance on the facts that had been

contended for by Ms Carrigan.

[k] Throughout the conference, Vice President Lawler sought to

explore positively what the Applicant’s contentions of

mistreatment by the Respondent were and how they could be

translated into a viable cause of action of any kind, and not

33

simply whether there was any basis upon which an application

under s 365 or 372 was viable.

[l] The Respondent’s solicitor expressed exasperation at his

dealings with Ms Carrigan and endorsed Vice President Lawler’s

attempt to tease out how a viable cause of action might be put

against the Respondent, and to reach an overall settlement of all

outstanding matters between the parties that were capable of

being settled.

[m] If the matter was not resolved before the Commission, the

Applicant would have had to pursue a remedy in the courts, and

he had formed the view that the Applicant would have required

legal representation to run such a case, but that such a case

would have had marginal prospects of success.

[n] He asked the Applicant whether the fees associated with

litigation ($15,000 to $20,000) could be afforded, to which the

Applicant responded in the negative.

[o] He informed Ms Carrigan and the Applicant in a private session

that it was necessary to do something that he had not done in

more than a decade on the Bench, and proceeded to inform the

Applicant that:

(i) He had sufficient expertise to determine that Ms

Carrigan’s advice to the Applicant had been utterly

incompetent.

34

(ii) At significant expense to the Applicant, Ms Carrigan had

advised the pursuit of claims that were prohibited,

misconceived and/or not the appropriate remedy to

address the Applicant’s real complaint against the

Respondent, which was that mental illness had been

caused by the Respondent’s alleged failure to deliver

promised support to the Applicant.

(iii) Ms Carrigan had no apparent appreciation of the level of

incompetence involved in her advice.

(iv) It was not in the Applicant’s interests to pursue either the

application under s 365 of the Act or the Australian

Human Rights Commission claims because of their poor

prospects of success and the money and non-monetary

costs associated with the pursuit of those claims in a

Court.

(v) The Applicant should seek alternative advice before

continuing down the path being advised by Ms Carrigan.

[89] Vice President Lawler concluded his response of some six pages by

contending that his conduct at the conference was an appropriate

response to an abuse of the processes of the FWC, the unreasonable

vexation of the opposing party and the “witting or unwitting

exploitation” of a vulnerable citizen. He explained that what he said

was in private conference with only Ms Carrigan and the Applicant on

the line, and that he had made a serious effort to resolve the whole of the

“settleable” outstanding issues. He denied that he acted in any way

35

inappropriately with Ms Carrigan. To the extent such things were

suggested in the complaint, they were false.

[90] He said he did not propose to address each element in the factual

account given by Ms Carrigan. He agreed with some of the things

asserted and rejected others “as wrong and, in some instances false or

delusional”. The overall impression created by her account was, he said,

“false and misleading and, if subjected to close analysis, would be

shown to be substantially irrational”.

[91] He noted that other FWC Members had trenchantly criticised an

advocate in the presence of their client in a conference or hearing

resulting in a complaint to the President. He understood that the

predecessor of Justice Ross had consistently dealt with those complaints

on the basis that a FWC Member was entitled to make such criticism in

appropriate circumstances.

4.3 Misbehaviour?

[92] It seems to be common ground that Vice President Lawler strongly

criticised the competence of Ms Carrigan in front of her client. There

are more surprising allegations, eg, that the Vice President said he was

“a big fish in a very tiny pond”, was “happy to assist the Applicant, even

if it meant dipping into his own sick leave”, and that he had to “dip into

his mortgage” because of his partner’s legal matters.

[93] In his response Vice President Lawler does not deal specifically with

these particular allegations, but I think it is fair to take them as being

included within his general denial quoted above.

36

[94] Even if Ms Carrigan’s account of what was said in the conference is

entirely accurate, the comments I have described as surprising were, at

worst, eccentric. They were not illegal, immoral or dishonourable. They

were made in a private conference, and in a context where he was

legitimately expressing an opinion about a case which he saw as having

no merit.

[95] I would not accept that Vice President Lawler engaged in any

wrongdoing, and I certainly would not accept that anything that

happened during the conference constituted any basis, let alone a

reasonable basis, for both Houses of Parliament to consider requesting

the Governor-General to remove Vice President Lawler from the FWC

on the grounds of proved misbehaviour.

[96] I should add that I have received from Ms Carrigan under cover of a

letter dated 4 January 2016 submissions of some 13 pages. These

submissions are not confined to the conference of 27 May 2014 and

indeed extend far beyond my terms of reference. For example, they

include an allegation of misconduct by Vice President Lawler at a

conference in the United States. I have not found these submissions

helpful.

[97] Relevant to my opinion are the following observations:

[a] The application drafted by Ms Carrigan alleging wrongful

dismissal of the Applicant was misconceived. Her client had not

in fact been dismissed.

37

[b] It is not inappropriate in some circumstances, in a mediation or

conciliation context, for the mediator to admonish litigants or

their representatives, particularly if an application appears to

have been brought without any reasonable basis.

[c] The role of a mediator or conciliator is different from that of an

arbitrator or judge, and it is certainly not uncommon for a

mediator or conciliator to offer forthright views about the merits

of any given case with the aim of trying to effect a settlement,

and also to give general warnings about the perils of continuing

with uncertain litigation (I shall return to this aspect later in this

report).

4.4 Management of complaint by FWC

[98] On 30 May 2014, Ms Carrigan wrote to Justice Ross and said that she

wished to complain about the behaviour of Vice President Lawler during

the telephone conference. She followed this up with a formal statement

in support of her complaint on 13 June 2014.

[99] On 4 June 2014, Ms Carrigan was notified by the Fair Work

Commission that the Vice President was on extended sick leave.

[100] From about 19 June 2014, Ms Carrigan saw media reports that

suggested that Vice President Lawler was involved in a range of

activities, including claims that he had appeared in the courts as a legal

advocate, that did not support the claim that he was on sick leave. On 10

September 2014, she requested an update on the management of her

complaint.

38

[101] On 29 September 2014, Justice Ross wrote to her advising that Vice

President Lawler was on sick leave, and that it would not be appropriate

to investigate her complaint until Vice President Lawler resumed his

duties.

[102] In early 2015, Ms Carrigan became aware from published decisions of

the FWC that Vice President Lawler appeared to have returned from

sick leave in December 2014. On 16 March 2015, she requested an

update from Justice Ross about the progress of his investigation of her

complaint. She was told by Justice Ross’ Associate that she could expect

a response as soon as possible.

[103] On 29 May 2015, and having not heard from Justice Ross, Ms Carrigan

wrote to him raising questions about the delay attending the

investigation of her complaint. On the same day, Justice Ross replied to

her, saying that Vice President Lawler had resumed a period of extended

sick leave, and that it would not be appropriate to investigate her

complaint while Vice President Lawler was away on sick leave.

[104] On 8 June 2015, Ms Carrigan wrote to Justice Ross, and said that it

appeared that Vice President Lawler has been at work from early

December 2014 to at least 13 April 2015, and that this 5 month period

was more than enough time for Justice Ross to have undertaken an

investigation of Vice President Lawler’s conduct. Ms Carrigan

concluded her letter by asking Justice Ross to provide her with any

reason as to why she should not refer Justice Ross’ handling of her

complaint to the Minister.

39

[105] On 13 June 2015, Justice Ross wrote to Ms Carrigan, and said that it

was a matter for her as to whether she decided to make a complaint to

the Minister.

4.5 Ms Carrigan’s complaints to the Minister

[106] On 6 July 2015, Ms Carrigan wrote to the then Minister for

Employment, Senator the Honourable Eric Abetz, requesting that he

exercise his statutory powers under s 641A of the Fair Work Act.

[107] Section 641A provides as follows:

The Minister may handle a complaint about the

performance by an FWC Member of his or her duties:

(a) for the purpose of considering whether each

House of the Parliament should consider whether

to present to the Governor-General an address

praying for the termination of the appointment of

the FWC Member; and

(b) for the purpose of considering whether to advise

the Governor-General to suspend the FWC

Member.

[108] Ms Carrigan gave as the reasons for her request the facts and matters (as

described above) arising out of the conduct of Vice President Lawler in

the telephone conference held on 27 May 2014.

40

[109] Ms Carrigan claimed that Vice President Michael Lawler exhibited the

following behaviour:

[a] An overt prejudging of the application.

[b] A lack of impartiality in addressing the application.

[c] An overbearing and generally querulous attitude throughout the

conference.

[d] Providing inappropriate and improper legal or other advice to the

Applicant that had the potential to disadvantage the Applicant

[e] Making improper and inappropriate references to Vice President

Lawler and his partner’s own legal circumstances.

[f] Making disparaging comments about the Fair Work

Commission.

[g] Making disparaging comments about the legal profession and

individuals within it.

[h] Making improper and inappropriate references to the Vice

President’s high level of remuneration.

[i] Putting undue pressure on the Applicant to accept a Deed of

Settlement without first having had the opportunity to review the

Deed to establish that it fairly reflected the disputed outstanding

entitlements, and to accept the Deed as it was the Vice

President’s preference to conclude the matter in one sitting.

41

[j] Generally acting in a manner, which neither inspired confidence

nor respect for the important position that he held.

[110] In her letter of 6 July 2015, Ms Carrigan raised a further complaint to

the Minister about the progress of her complaint in the FWC. Ms

Carrigan said that she had originally written to Justice Ross on 30 May

2014 to complain about Vice President Lawler’s behaviour during the

telephone conference held on 27 May 2014. By 6 July 2015, she felt

that her complaint had still not been investigated and/or resolved.

[111] On 9 July 2015, after having receiving confirmation from the office of

the Minister that her letter of 6 July had been received, Ms Carrigan

wrote a further email to the Minister’s office, in which she said:

[a] Her complaint was a complaint as much against the FWC and its

management of her complaint as it was a complaint against Vice

President Lawler.

[b] She no longer had confidence that the FWC was capable of

undertaking a fair investigation into the matters the subject of her

complaint.

[c] It appeared that the FWC was unable or unwilling to address the

issues surrounding Vice President Lawler, particularly in the

context of Vice President Lawler’s extracurricular activities

being widely reported on.

42

4.6 Conclusions as to management of complaint

[112] I do not accept that there has been any mishandling of Ms Carrigan’s

complaint by Justice Ross or any other officer of the FWC. It was

entirely reasonable for Justice Ross to take the position that he not

disturb Vice President Lawler’s sick leave by requiring him to respond

to the complaint. Further, in the circumstances of this case, it was not

necessary for Justice Ross to ensure that the complaint was dealt with

immediately and as a matter of priority.

[113] Vice President Lawler was away on sick leave from shortly before the

conference involving Ms Carrigan until early December 2014. During

this time, Justice Ross took the reasonable position that:

[a] In order to manage the complaint, the substance of the complaint

needed to be put to Vice President Lawler so that a response

could be received from him.

[b] He was not in a position to require Vice President Lawler to

respond to the complaint while the Vice President was away on

sick leave.

[c] Even if he could require Vice President Lawler to respond to the

complaint while the Vice President was on sick leave, it would

not have been appropriate to do so because he believed there was

a risk that doing so could exacerbate Vice President Lawler’s

illness.

43

[114] Vice President Lawler returned to work in December 2014. The

complaint dealt with one past event, the conference of 29 May 2014,

which did not have relevance for any contemporary proceedings at the

Commission. It was appropriate in the circumstances for Justice Ross to

allow Vice President Lawler the opportunity to settle back into work

before raising the complaint with him.

[115] In any event, not long after his return to work, Vice President Lawler

commenced another short period of sick leave. Upon his return, and on

22 January 2015, Justice Ross met with Vice President Lawler. At that

meeting, Justice Ross observed that Vice President’s mental health was

attended by a degree of fragility. He decided that in the circumstances, it

was best to defer management of Ms Carrigan’s complaint until a later

time, at which point it was expected that Vice President’s mental health

may have improved. Justice Ross further decided that he would restrict

the nature of work allocated to Vice President Lawler to matters that

would be recorded, such as unfair dismissal applications and

applications to approve agreements. These steps were appropriate and

indicate the genuine concern Justice Ross had for the welfare of the Vice

President.

[116] On 26 March 2015, Justice Ross formally requested Vice President

Lawler to respond to Ms Carrigan’s complaint. On 8 April 2015, Vice

President Lawler provided his response, to which detailed reference has

been made above. On 13 April 2015, and before Justice Ross had an

opportunity to further manage the complaint, Vice President Lawler

commenced a further period of sick leave until the end of July 2015. By

the time that Vice President Lawler returned to work, Ms Carrigan had

44

already made a formal complaint to the Minister, meaning that it was no

longer appropriate for Justice Ross to further manage the complaint.

45

5 INVESTIGATION PROCESSES; TERM OF REFERENCE 2

5.1 Present processes

(a) The Governor-General, the Minister, and the Parliament

[117] Under s 641 of the Fair Work Act, the Governor-General may terminate

the appointment of an FWC Member if an address praying for the

termination is presented by each House of the Parliament. This may be

done on two grounds only: proved misbehaviour, or the Member being

unable to perform the duties of his or her office because of physical or

mental incapacity.

[118] Section 641A of the Fair Work Act empowers the Minister to handle a

complaint about the performance of a Member of the FWC of his or her

duties. The Minister may consider whether the Houses of Parliament

should consider whether to present to the Governor-General an address

praying for the termination of the appointment of the FWC Member.

The Minister may also consider advising the Governor-General to

suspend the FWC Member.

[119] As explained below, the Minister must consider any matter referred to

him or her by the President of the FWC.

(b) The President of the Fair Work Commission

[120] Under s 581 of the Fair Work Act, the President is responsible for

ensuring that the FWC performs its functions and exercises its powers in

a manner that is efficient and adequately serves the needs of employers

and employees throughout Australia.

46

[121] Section 581A of the Fair Work Act empowers the President to deal with

a complaint about the performance by another FWC Member of his or

her duties, and to take any measures that the President believes are

reasonably necessary to maintain public confidence in the FWC,

including (but not limited to) temporarily restricting the duties of the

FWC Member.

[122] The President must refer a complaint about a FWC Member to the

Minister if, after the complaint has been handled by the President or any

other person appointed by the President to handle the complaint, the

President is satisfied that one or more of the circumstances that gave rise

to the complaint have been substantiated, and that each House of the

Parliament should consider whether to present to the Governor-General

an address praying for the termination of the appointment of the FWC

Member. The Minister must then consider whether each House of the

Parliament should consider the matter.

[123] For a complaint to trigger s 581A, it must be a complaint about the

performance by a FWC Member of his or her duties. Performance

refers to things done by way of decision or conduct in relation to cases,

although it can also extend to non-performance of duties.

[124] Under s 581B of the Fair Work Act, the President, after consulting the

other FWC Members, may determine a Code of Conduct.

[125] Such a Code has been produced. It is quite extensive. For present

purposes it is not necessary to examine it in detail. At the outset it

emphasises three “basic principles”: impartiality, independence and

integrity, and personal behaviour.

47

[126] The FWC has provided me with some statistics as to its complaint

handling processes.

[127] Between 1 January 2013 and 31 October 2015 the FWC received and

finalised 97 complaints that were ostensibly about FWC Members. Of

these, 47 were “appeal/process” complaints, ie relating to the merits and

substantive outcome of a matter. Also in this category are complaints

concerning administrative processes not related to a Member’s conduct.

Such complainants are told that their remedy is to seek leave to appeal

of the decision to a Full Bench.

[128] The remaining 50 complaints related to Members’ conduct. Of these,

only 4 were upheld.

[129] These statistics would seem to indicate that there is in place a rational

system of dealing with complaints. In particular, the distinction between

appeal/process complaints and others seems logical in a setting where

losing litigants are often likely to be disappointed.

5.2 AIRC appointees holding office in FWC

[130] Section 581A of the Fair Work Act probably does not apply to FWC

Members like Vice President Lawler who had been appointed to the

AIRC under the Workplace Relations Act. While there is some doubt

about this matter, the better view is that s 581A cannot properly be

viewed as a mere supplementary or machinery provision which can sit

together with the preserved terms and conditions of former AIRC

Members. As such, it would be unsafe for the President to utilise powers

48

under the section against a former AIRC Member unless the Fair Work

Act were amended to make the position clear.

[131] But assuming that s 581A is not available, it would still fall within the

powers of the President under s 581 of the Fair Work Act, taken together

with his implied and incidental duties, to receive a complaint about a

FWC Member who is a former AIRC Member. The President would

further be entitled to communicate an opinion to the Minister bearing

upon whether the Houses of Parliament should consider petitioning the

Governor-General for removal of the former AIRC Member under the

preserved provisions of s 82 of the Workplace Relations Act.

[132] For similar reasons, s 641A probably does not apply to Members like

Vice President Lawler either. Nevertheless, the Minister’s powers,

ultimately tracing to sections 61 and 64 of the Constitution, are similar

to those enjoyed by the President. In other words, the Minister has the

power to receive a complaint, to make enquiries about it or any relevant

concern held by the Minister from the former AIRC Member and from

any other person who may have information to give (although not on a

coercive basis), and on that basis, to form opinions about the matter.

5.3 Suggestions for change

[133] One can understand Ms Carrigan’s frustration at the long delay in

resolution of her complaint. However, that was not as a result of

dilatoriness or inefficiency on the part of the FWC, or the lack of any

procedural machinery; it was due to Vice President Lawler’s medical

condition. From the FWC’s viewpoint, that condition was supported by

appropriate specialist medical evidence.

49

[134] As a matter of basic policy, procedures for handling disputes against

members of courts or court-like bodies can be of two kinds: internal,

under the Chief Justice or equivalent head of jurisdiction; or external,

under a separate legislatively-established body.12

[135] There are a number of examples from other jurisdictions in which an

independent body has been established to investigate and handle

complaints about the behaviour of judicial members. These include the

Canadian Judicial Council,13 the Judicial Conduct Commissioner of

New Zealand,14 and the Judicial Commission of New South Wales.15. In

November 2015, the South Australian Parliament passed the Judicial

Conduct Commissioner Bill 2015, which provides for the appointment

of a Judicial Conduct Commissioner to receive and determine

complaints regarding the conduct of judicial officers. In December 2015,

the Victorian Government introduced a Bill into the State Parliament

providing for a Judicial Commission.

[136] In the context of the present inquiry, which is essentially concerned with

the conduct of one person, and one complaint about that person, which

in my opinion was handled appropriately in the circumstances, it does

not seem useful or appropriate that I embark on an analysis of such an

12 For an extensive discussion on the subject going back to colonial times, see Hon

Michael Kirby AC Discipline of Judicial Officers in Australia, a paper presented at a meeting of the Judicial Group on Strengthening Judicial Integrity at Bangalore, India in February 2001, www.michaelkirby.com.au. See also Sir Harry Gibbs, The Appointment and Removal of Judges (1987) 17 Federal Law Review 141, The Hon Leonard King AC QC, Removal of Judges (2003) 6 Flinders Journal of Law Reform 169, Bruce v Cole [1998] 45 NSWLR 163, Clark v Vanstone (2004) 211 ALR 412 at [85].

13 Judges Act, RSC (1985). 14 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (NZ). 15 Judicial Officers Act 1986 (NSW).

50

important law reform issue with social, political and constitutional

implications.

[137] At the federal level the issue of procedures for handling complaints

against judges was considered as recently as 2012.

[138] The Judicial Misbehaviour and Incapacity (Parliamentary

Commissions) Act 2012 (Cth), which applies only to Chapter III judges,

provides for the appointment of ad hoc commissions to investigate and

report to Parliament on the alleged misbehaviour or incapacity of a

“Commonwealth judicial officer” so that Parliament may be “well-

informed to consider” whether to pray for removal of the officer under s

72(ii) of the Constitution. Commissions appointed under the Act are

given various compulsive investigative powers. There are also, in s 20,

detailed natural justice provisions. But the definition of

“Commonwealth judicial officer” in effect is confined to judges

appointed under Chapter III of the Constitution. Although Vice

President Lawler has “the rank and status of a Federal Court judge” he is

not a Chapter III judge and thus the Act cannot apply to investigations

involving him.

[139] As well as the Judicial Misbehaviour and Incapacity Act, Parliament

also enacted, as part of a legislative package, the Courts Legislation

Amendment (Judicial Complaints) Act 2012 (Cth). This Act provided

for amendments to the different Acts establishing the Federal Court of

Australia, the Family Court of Australia and the Federal Magistrates

Court of Australia (as the Federal Circuit Court of Australia was then

called). The amendments in effect provided for internal complaints

51

handling procedures under the control of the relevant head of

jurisdiction.

[140] Also, as already mentioned, under the FWC’s own Act there is similar

provision for the President to deal with complaints.

[141] It seems reasonable to infer that there has been a conscious and recent

policy decision – unlike that recently taken in South Australia and

Victoria – not to introduce at federal level a standing body along the

lines of other jurisdictions such as the New South Wales Judicial

Commission.

[142] The present system does impose a significant burden on the President of

the FWC. Amongst other things it sometimes involves listening to

many hours of recordings of proceedings. However, I do not see the

(fortunately) wholly exceptional nature of the present case as a rational

basis for fundamental change, given, as I say, the recent policy decision

for federal jurisdictions.

[143] Nevertheless, there would seem to be logic in extending the provisions

of the Judicial Misbehaviour and Incapacity Act to cover termination

proceedings against persons like Vice President Lawler who are not

judges but hold office on Act of Settlement terms.

[144] Further, because of the uncertainty surrounding the applicability of

sections 581A and 641A to former AIRC Members, there would be

some utility in amending the present legislation to ensure (so far as is

constitutionally possible) that these provisions apply to all Members of

the FWC, irrespective of when they were appointed.

52

53

6 ABSENCE FROM DUTY; TERM OF REFERENCE 3

6.1 Processes for approval of sick leave

[145] There was no applicable cap on the amount of sick leave a person in

Vice President Lawler’s position could take. Nor were there any formal

legislative procedures for the application for, and grant of, such leave.

[146] Section 639(1) of the Fair Work Act provides for Members to have the

recreational leave determined by the Remuneration Tribunal. By

s 639(2) the President may grant “leave of absence, other than

recreational leave” (which would presumably include sick leave as well

as, perhaps, compassionate leave), “on the terms and conditions as to

remuneration or otherwise as the President determines”.

[147] This is not an unusual situation in courts in Australia. A friend tells me

that upon appointment to a Supreme Court some years ago he and other

appointees were given a single sheet of paper which set out various

entitlements as to use of motor vehicle, annual leave etc. Under the

heading “Sick Leave” were the bleak words “No provision”.

[148] Of course this did not represent an underlying assumption that for the

next few decades or so none of the appointees would ever get sick, or, if

they did, they would not be paid during any absence from work. Rather

the assumption was that in the event of sickness both the appointees and

the Chief Justice would work out a fair and practical arrangement.

[149] More recently I understand there has been some degree of formality in

that court with the production of a document speaking of the provision

54

of medical certificates and approval by the Chief Justice. But this was no

more than making explicit what had long been implicit.

[150] Probably McKinsey & Company would not approve. Nor do I suggest

arrangements like this would be an appropriate system for the

Commonwealth Bank or Australia Post. But the example rather

confirms how administrative arrangements within courts and similar

bodies are informal, dependent on trust, and work well.

6.2 Periods of absence in 2014-2015

[151] Vice President Lawler first went on sick leave from 22 May 2014 to 4

June 2014. This period of leave was then extended:

[a] from 5 June 2014 to 19 June 2014;

[b] from 20 June 2014 to 20 July 2014;

[c] from 21 July 2014 to 18 August 2014;

[d] from 19 August 2014 to 7 September 2014;

[e] from 8 September 2014 to 31 October 2014; and

[f] from 1 November 2014 to 30 November 2014.

[152] Each of the above periods of sick leave were supported by medical

certificates and approved by Justice Ross.

[153] Vice President Lawler did attend for work on a few days covered by the

sick leave certificates. One was the day of the telephone conference

55

involving Ms Carrigan on 27 May 2014. There is no direct explanation

as to why he conducted this conference. It may be, at the time, it looked

like a fairly straightforward matter he would be able to clear up without

too much trouble. In any event, I do not see involvement on this

occasion detracts from the medical diagnosis by his specialist and my

conclusion as to his subsequent mental health. He also attended on a

few days for the purpose of handing down decisions. I infer that he did

not carry out substantial work on these latter days.

[154] Vice President Lawler returned to work at the Commission in early

December 2014.

[155] From 5 January 2015 to 9 January 2015, Vice President Lawler took

another five days of sick leave. This period of sick leave was supported

by a medical certificate and approved by Justice Ross.

[156] On 13 April 2015, Vice President Lawler went on sick leave until 17

April 2015. This period of leave was twice extended from 18 April 2015

to 19 May 2015, and then from 20 May 2015 to 22 July 2015. Again,

each of these periods of sick leave was supported by medical certificates

and approved by Justice Ross.


56

6.3 Misbehaviour?

[158] The starting point is that Vice President Lawler undoubtedly suffered

from serious mental illness. In a detailed report dated 24 July 2015, his

treating psychiatrist Dr Irwin Pakula MBBS FRANZCP said:

[159] Dr Pakula provided a further report dated 9 November 2015. This was

forwarded to me by Vice President Lawler’s solicitors in support of a

request, to which I acceded, to extend the time for providing responses

to questions I had submitted to him.

[160] In this report Dr Pakula said

[161] What attracted substantial media attention and criticism was the fact that

Vice President Lawler while on sick leave assisted Ms Jackson in



57

relation to her appearance before the Royal Commission into Trade

Union Governance and Corruption and litigation brought against her in

the Federal Court by the HSU.

[162] In fairness it must be said that, in marked contrast to the Four Corners

program, Vice President Lawler cannot really be blamed for this

publicity. It was due to Ms Jackson’s prominence as a controversial

figure.

[163] Had he been aiding his sister while she was involved in an unexciting

building dispute it is unlikely his involvement would have attracted

much media attention.

[164] Nor is it relevant that he received, by public sector standards, a high

salary. The obligations of his office were the same, whatever the salary.

[165] The involvement of Vice President Lawler in Ms Jackson’s litigation

will be considered in more detail below in the section dealing with

conflicts of interest (Section 7.7).

[166] At this point I shall refer to a telephone conference I had with Dr Pakula

on 15 December 2015.

[167] Dr Pakula graduated MB BS from the University of New South Wales

in 1978 and became a Fellow of the Royal Australian and New Zealand

College of Psychiatrists in 1986.

[168] Since then he has carried on a specialist practice in psychiatry.

58

[169] He is currently the Medical Superintendent of the South Coast Private

Hospital and an Associate Professor at the Post Graduate Medical

School at the University of Wollongong.

[170] Since mid 2014 he has been treating Vice President Lawler

[172] As I explained to Dr Pakula, his opinions are centrally relevant to two of

the issues which arise in this inquiry:

[a] The activity of Vice President Lawler in assisting Ms Jackson in

litigation while he was on sick leave from the FWC , and

[b] The prognosis for his return to work at the FWC.

(a) Assisting Ms Jackson

[173] Because of his illness, Vice President Lawler has not been in a position

to respond to questions I sent to him on 28 October 2015 asking,

amongst other things, for details of the work he did for Ms Jackson.

Therefore I had endeavoured to construct from other sources such as

court files some sort of picture for the purposes of Dr Pakula’s opinion.

[174] In summary, as I informed Dr Pakula, this material shows:

[a] On 13 June 2014 Ms Jackson signed a 63 page statement for the

Royal Commission into Trade Union Governance and



59

Corruption. She said she had put “enormous hours” into

preparing this statement and Vice President Lawler had assisted

her.

[b] On 29 July 2014 Vice President Lawler spoke to a solicitor from

the Royal Commission and said he and Ms Jackson had “been

getting little sleep and had been constantly working on legal

matters”.

[c] On 15 and 24 June 2015 Vice President Lawler appeared in

procedural hearings the Federal Court litigation in Sydney by

video-link to Melbourne.

[d] In an email to President Ross of the FWC Vice President Lawler

spoke of the “vast amount of work” he had done for Ms Jackson.

[e] From my own experience, work that a lawyer does in preparing a

case would usually involve reading and drafting documents,

looking up the law and thinking and talking about the case.

[175] Dr Pakula said he was well aware that Vice President Lawler was doing

this other work. Redacted: Personal medical/health information


60

[178] It is clear that Dr Pakula was well aware that Vice President Lawler was

heavily, albeit unwisely, involved in his partner’s litigation. Indeed, as

will be mentioned later, that was one of the stressors that has been

hindering his recovery. Nevertheless his diagnosis remains firm.

[179] I accept Dr Pakula’s opinion, as I think would any reasonable employer.

[180] On this ground I do not consider there is a reasonable basis for

consideration of a request for his removal on the ground of

misbehaviour or incapacity.

(b) Prognosis for return to work

[181] I shall return to this issue in Section 9 below.



61

7 CONFLICTS OF INTEREST; TERM OF REFERENCE 4

[182] The issue of conflicts of interest arise in two distinct contexts: first, Vice

President Lawler’s convening and conduct of two conciliation

conferences in August 2008 between the HSU and the Victorian

Hospitals Industrial Association at which Ms Jackson appeared for the

HSU, and, secondly, his involvement in litigation on her behalf in 2014

and 2015 in the Royal Commission into Trade Union Governance and

Corruption and proceedings brought against her by the HSU in the

Federal Court.

[183] According to evidence given by Ms Jackson to the Royal Commission

on Trade Union Governance and Corruption, her relationship with Vice

President Lawler commenced in about March 2008.16

7.1 Disclosure of relationship

[184] Neither Ms Jackson nor Vice President Lawler disclosed to the other

parties in the VHIA proceedings the existence of their relationship. The

first disclosure to the AIRC was to the then President of that body,

Justice Geoffrey Giudice AO, on 20 October 2008. That disclosure

came, not from Vice President Lawler, but from the VHIA, which had

come to hear of the relationship from an outside source.

7.2 Conferences in August 2008

[185] Mr Alec Djoneff is the Chief Executive Officer of the VHIA. In 2007

and 2008 his organisation was involved in enterprise bargaining 16 Trade Union Royal Commission – Witness Statement of Katherine Jackson, 14 August

2013, at para [12].

62

negotiations with the HSU No. 3 Branch. This was a typically complex

industrial dispute involving many issues such as wages, increments,

classifications, conditions, etc. Negotiations had broken down. The

matter had been listed for arbitration before a Full Bench of the

Commission in early September 2008.

[186] Vice President Lawler, at his own initiative, convened a conciliation

conference on 5 August 2008. Mr Djoneff appeared with one of his

staff. Also present was a representative of the State Health Department.

Ms Jackson and two others appeared for the HSU.

[187] Mr Djoneff describes17 the approach and tone of Vice President Lawler

as “surprisingly aggressive”, “extremely robust” and “challenging the

legitimacy” of his client’s position. Vice President Lawler said that the

VHIA was “running a big risk” in letting the matter go to the Full

Bench. Mr Djoneff told the Vice President that he did not appreciate

“being heavied”, had made his own risk assessment and was content to

having the matter dealt with by the Full Bench.

[188] By contrast, he said, the Vice President’s attitude to the HSU

representatives was “calm and friendly”.

[189] Vice President Lawler invited the VHIA and the Department to go away

and reflect. A second conference was convened for 19 August. The

VHIA maintained its position that the matter should go to the Full

Bench. No further conciliations were sought or proposed by any of the

parties or by Vice President Lawler.

17 Telephone conference with the author 2 December 2015

63

[190] Mr Djoneff had appeared in a conciliation conference before Vice

President Lawler in the previous year. By contrast, his conduct then

“could not be faulted”. He was “balanced but incisive and probing”.

[191] Mr Djoneff later heard from an outside source of the relationship

between Vice President Lawler and Ms Jackson that was in existence at

the time of the August conciliation conferences. As a consequence he

went to see the then President, Justice Geoffrey Giudice AO, on 20

October 2008. His impression was that this was the first time the

President had heard of the relationship.

[192] A few weeks later the Commission made an adjustment of panels such

that Vice President Lawler no longer had the Health Sector allocated to

his Panel of industries.

[193] In the meantime, the Full Bench had heard the matter in September

2008. Decision was reserved and handed down in April 2009.

According to Mr Djoneff, it was a less favourable result for the HSU

than the final offer of the VHIA.18

[194] In relation to the conciliation conferences it will be convenient to

discuss at this stage two related legal questions. The first concerns

natural justice, and in particular the rule dealing with ostensible bias, as

it applies to conciliation and like procedures such as mediation.

Secondly, what legal constraints are there on the conduct of a

conciliation or mediation?

18 Corroboration is provided by the comment of Ms Jackson in the Four Corners program when she says that the HSU “got an awful outcome”

64

7.3 Ostensible bias and the conciliation process

[195] There is a great body of law concerning conflicts of interest involving

judges and arbitrators.

[196] The issue is dealt with in the Guide to Judicial Conduct, second edition,

2007, published for the Council of Chief Justices of Australia by the

Australasian Institute of Judicial Administration.

[197] The Guide categorises various relationships which could give rise to the

appearance of bias. Under the heading “Personal relationships” the

Guide includes as the “First degree” parent, child etc and also “domestic

partner”,19 which would cover the relationship between Vice President

Lawler and Ms Jackson. The Guide states that where such relationships

exists between the judge and, inter alios, legal advisers or

representatives, the judge should not sit.20

[198] It is true that a mediator or conciliator has a function fundamentally

different from that of a judge or arbitrator.

[199] Parties in litigation before a judge or arbitrator face having their rights

determined, without their consent, and potentially in a way not to their

advantage. They are entitled to expect that the judge or arbitrator will

decide the case on the law and the evidence, without any

preconceptions, or interests or relationships which might affect, or be

reasonably suspected as affecting, the decision.

19 P 12 20 P 13

65

[200] A mediator or conciliator on the other hand cannot change rights without

the parties’ agreement.

[201] A practical illustration of the difference between the two functions is

that it is common, almost universal, practice, for a mediator at some

stage to confer with one party in the absence of the other. Of course,

this would be unthinkable for a judge. But does this mean that there is

no obligation to afford natural justice, including the rule against

ostensible bias arising from some personal relationship between the

mediator or conciliator and one of the parties or their representative?

[202] In an obiter comment in a dissenting judgment in a recent New South

Wales Court of Appeal decision Justice Basten said that:21

The nature of a mediation for the purposes of reaching an

agreement as to an existing dispute does not invoke the

exercise of judicial power, nor anything analogous to

judicial power. There is no assessment by an independent

tribunal of the merits of each party’s case, nor any ruling

on those merits.

[203] Taken literally, this passage might suggest that mediation or conciliation

is a kind of no man’s land, with no room for anything analogous to

judicial restraints, such as natural justice obligations, however modified.

[204] However, the facts of that case were far removed from the present

circumstances. The issue was whether solicitors sued for alleged

21 Stillman v Rusbourne [2015] NSWCA 410 at [30].

66

negligence in the conduct of a mediation could rely on the advocate’s

immunity: Giannarelli v Wraith. 22

[205] A more direct guide is provided by the decision of Justice Spender in the

Federal Court in Koppen v Commissioner for Community Relations.23

[206] In that case Mr Koppen was the defendant in an action by plaintiffs

complaining of racial discrimination because he allegedly excluded

persons of Aboriginal and Islander origin from the nightclub he

conducted in Cairns. Under s 22 of the Racial Discrimination Act 1975

(Cth) a compulsory conference with a view to settlement had to be

conducted. A certificate issued by the Commissioner that such a

conference had been held, and that the matter had not settled, was a pre-

condition to the commencement of civil proceedings under the Act.

[207] A compulsory conference was duly convened and the matter did not

settle. However, Mr Koppen complained that the certificate of the

Commissioner was a nullity because the person presiding over the

conference, who was herself of Aboriginal extraction, had said that her

daughters had been refused entry to the premises in question.

[208] Justice Spender upheld the complaint. His Honour said24

If the conference in this case is found to be vitiated by

bias, then the applicant shall have lost his opportunity to

have the complaints conciliated at a compulsory

22 (1988) 165 CLR 543 23 [1986] FCA174, (1986) 11 FCR 360 24 At [46], see also at [47]-[48]

67

conference and shall be exposed to the hazard of civil

liability and costs.

[209] His Honour referred25 to a number of High Court cases establishing that

the Conciliation and Arbitration Commission (a forerunner of the Fair

Work Commission) was “in its arbitral function” required to accord

natural justice. However, his Honour noted that there are no cases

dealing with the conciliation function. I might add that I have not been

able to locate any.

[210] The logic of Justice Spender’s reasoning seems applicable to a

conciliation conference under the Workplace Relations Act, the

legislation applicable at the time of the conferences in 2008.

[211] It might be argued that the August 2008 conferences were voluntary and

settlement failure thereat was not a compulsory precondition for the

commencement of arbitration proceedings. The Full Bench hearings

had already been fixed for September 2008. On this argument, the

conferences had no status in law and therefore would not be a nullity

because of any breach of the rules of natural justice.

[212] Whether such an argument be correct, in the context of the question of

misbehaviour by a quasi-judicial officer, the conduct of Vice President

Lawler is in marked contrast to that of the mediator in Koppen. In that

case, the mediator made an honest and frank disclosure of her personal

interest in the proceedings. Here Vice President Lawler used his moral

authority as a senior member of the AIRC to summons the parties to a

formal conference at the Commission’s premises when he had an 25 At [63]

68

undisclosed personal relationship with a representative for one of the

parties. The conferences might have been “voluntary” but practically

speaking, everyone’s realistic expectation would have been that all

parties would attend and that if agreement were reached, the proceedings

would settle. In the case of the VHIA, it doubtless assumed that the

conferences would be conducted by Vice President Lawler as an

impartial quasi-judicial officer.

7.4 Conduct of conciliation conferences

[213] It is an everyday occurrence for mediators and conciliators to express

forcibly, even discourteously, their views on a party’s prospects of

success and the risks of going to judgment or arbitration. The

personality and style of conciliators and mediators can vary greatly.

[214] Interventions may range from:

It is conceivable a judge may discern latent ambiguities in your

case

to

Your case is absolutely hopeless

[215] Sometimes this can be upsetting to parties. They may be exposed for

the first time to a frank assessment of an outsider to the merits, or lack

thereof, of their case. And it can be embarrassing for lawyers to have

shortcomings in their advice pointed out, perhaps bluntly, in front of the

client.

69

7. 5 The August 2008 conferences – Misbehaviour?

[216] Vice President Lawler’s failure to declare the conflict of interest in the

conciliation conferences in August 2008 was a breach of natural justice.

[217] It might be said that, viewed objectively and in isolation, his actual

conduct of the conferences seems not have gone beyond the kind of

robust involvement which may occur in a mediation or conciliation

context.

[218] And in one sense it might be said that no permanent harm was done.

The VHIA had tough and competent representation and ended up with a

good result from the Full Bench decision. But such a view overlooks

the severe reputational damage to Vice President Lawler and the

Commission itself in the eyes of a regular litigant when the true situation

was revealed.

[219] While, as already noted, parties in a conciliation or mediation

conference must be prepared to accept forcible and uncomfortable views

as to the merits of their case, they are entitled to expect those views to

be advanced honestly, untainted by any relationship with the opposing

party or its representatives.

[220] Private mediation agreements typically include a term to the effect that

the mediator is to be, and to be seen to be, impartial and independent of

the parties. Parties to a compulsory conciliation conference in quasi-

judicial bodies such as the AIRC and the FWC are entitled to expect no

less.

70

[221] Vice President Lawler’s conducting these conferences while concealing,

it must be said deliberately and consciously, his relationship with Ms

Jackson, was misbehaviour of the relevant kind.

[222] Vice President Lawler’s conduct seems inexplicable. In the real world it

would have been apparent that sooner or later his relationship would

become known. In the AIRC (and now in the FWC) Members were

allotted to different panels which dealt with different industry sectors. It

would have been a simple and obvious course for Vice President Lawler

to request the President informally that he be transferred from the Health

Sector panel – as ultimately happened, but after the damage was done.

[223] This can be seen as an example of serious misjudgement of the kind

demonstrated in the Four Corners program, which, incidentally, includes

an attempt by Vice President Lawler to exculpate himself by giving a

misleading chronology of his relationship and the conciliation

conferences (when Ms Jackson is speaking of the conciliation

conferences, Vice President Lawler interrupts to say that they occurred

in 2007 and had finished when they commenced their relationship in

2008).

[224] In his email of 27 January 2016 to which I have already referred Vice

President Lawler says:

There is a background to the conciliation conference of which you are unaware; additional persons could provide detail as to the steps that I took to satisfy myself that I was behaving properly including taking specific advice from a Federal Court judge as to my conduct. I can provide independent corroborative evidence in this regard. I

71

would need to go back to my records and obtain documentary and other evidence as to the communications that I had, not only with the Federal Court judge, but also previous communications with the then President where the nature of my relationship was disclosed prior to the date referred to in the Draft Report.

[225] This defence that there was disclosure is inconsistent with the claim on

Four Corners that there was nothing to disclose because the conferences

were held before the Lawler-Jackson relationship commenced. But even

accepting all the alleged “background” for the purposes of argument,

there is no explanation as to why Vice President Lawler should have

taken the extraordinary course of convening and conducting the

conference with Ms Jackson appearing for one of the parties.

Presumably there were other Members of the FWC who could have

taken over HSU matters – as belatedly occurred when Vice President

Lawler was taken off the health industry panel. Most importantly, there

seems no doubt that there was no disclosure to the other party, the

VHIA.

[226] I conclude that Vice President Lawler’s participation in the August 2008

conferences constituted a reasonable basis for a consideration of request

for removal.26

26 Non-disclosure of a relationship (in that case commercial) between judge and counsel is

discussed in Wilson v Attorney General [2011] 1 NZLR 399. See also [2011] New Zealand Law Review 625.

72

7.6 Assistance to Ms Jackson in litigation

[227] On 18 and 19 June 2014, Ms Jackson gave evidence in person to the

Royal Commission into Trade Union Governance and Corruption, which

was sitting at 55 Market Street, Sydney. Vice President Lawler attended

the Royal Commission with Ms Jackson on at least one of those two

days, and photographs of his attendance were posted online.

[228] On 19 June 2014, an article by Ben Schneiders appeared in the Sydney

Morning Herald entitled: “HSU’s Kathy Jackson – brave whistleblower

or union crook?” The article concluded with the following remarks:

Another powerful supporter is her partner, Michael

Lawler, the Fair Work Commission vice-president, one of

the most senior figures on the industrial tribunal.

He plays an active behind-the-scenes role in her

campaigns and was angry with the media reporting this

week. When he spoke to journalists there appeared not

even a hint of doubt that she was still the heroic

whistleblower: “I am so concerned about my beloved

who has been smeared beyond belief.”

[229] The lead up to Ms Jackson’s appearance at the Royal Commission

involved a period of extensive preparation.27 A 63-page statement that

she had signed on 13 June 2014 was received into evidence during her

27 Ms Jackson said she put “enormous hours” into the task: see Witness Statement of

Kathy Jackson, 14 August 2014, at [68]

73

first appearance. On receiving a draft of that Statement, Ms Jackson

telephoned the solicitors assisting the Royal Commission, and said:

I have talked to Michael, and we agree that there is a lot

of work to be done to answer all of your requests and

even if you confine the statement to the treatment of the

whistle blower there is still a lot of material that needs to

go in to the statement to deal with that topic properly. 28

[230] On 20 June 2014, Ms Jackson was due to appear at a directions hearing

in the Federal Court of Australia at Melbourne before Justice Tracey, in

proceedings commenced against her in the previous year by the HSU. 29

As already mentioned, those proceedings concluded in the following

year with judgment for the HSU against Ms Jackson.30 Prior

arrangements had been made for her to appear at the hearing by way of

telephone conference.

[231] The appearance of Ms Jackson at the Royal Commission had received

significant media attention. It was inevitable that there would be further

media attention given to the directions hearing.

[232] At 8:52 am on the morning of 20 June 2014, Mr Lawler sent an email to

Justice Tracey’s Executive Assistant. It is convenient to set out the email

in its entirety:

28 Witness Statement of Kathy Jackson, 14 August 2014, at [67] 29 VID 1042 of 2013 and NSD 1501 of 2013 30 As already mentioned, final judgment in these proceedings was delivered on 19 August

2015, following a trial before Tracey J on 7-9 July 2015: see Health Services Union v Jackson (No 4) [2015] FCA 865. There was no appearance at the trial by Ms Jackson. Shortly before the hearing, she filed a debtor’s petition.

74

Dear [Executive Assistant]

I am the partner of Kathy Jackson.

I write as her partner in the discharge of my family

responsibilities in respect of my beloved partner.

The need for me to take the step of writing to you causes

me acute embarrassment because I happen also to hold

the office of Deputy President of the Fair Work

Commission. I am mindful of the duties of my office. I

would not ordinarily write to you save that extraordinary

circumstances obtain, and after taking counsel, I have

conscientiously adjudged that I should write this email to

you to inform his Honour that private circumstances have

arisen since she returned home last evening which mean

that she cannot appear in person at today’s mention.

She asked me as her partner, and I have agreed as her

partner, to make application to the Court to seek leave to

appear as her McKenzie’s friend to assist the Court in

relation to the mention of the matter.

I will make that application when you call Ms Jackson’s

number.

I do not relish having to make that application but in

circumstances where there is no one else to act for her

and she is mindful of not committing a contempt of the

Court, I will make that application, and seek relief from

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whatever riles [sic] may be required for that application

to be considered by his Honour.

I have a detail understanding of the case and can speak

to issues of non-compliance.

If the Court insists on Ms Jackson appearing in person, I

will wake her. I humbly beseech his Honour not to

require that of me.

Yours faithfully

Michael Lawler

as partner of Katherine Jackson

[233] The term “McKenzie friend” comes from a matrimonial case in the

English Court of Appeal in 1970.31 In that decision, it was held that the

petitioner was entitled to have a friend present in court beside him to

assist by way of prompting, taking notes, and quietly giving advice.

Strictly speaking the McKenzie friend is silent in court, and is not an

advocate on behalf of the litigant that he or she is assisting.

[234] The McKenzie friend issue may have been something of a distraction,

albeit one introduced by Vice President Lawler himself. The Federal

Court has the power to allow a non-lawyer to appear on behalf of a party

(Presumably Vice President Lawler would not have had a current

practicing certificate and so was a “non-lawyer” for these purposes).

31 McKenzie v McKenzie [1970] P 33.

76

[235] Rule 4.01 of the Federal Court Rules provides that a person may be

represented in the Court by a lawyer or may be unrepresented.

However, Rule 1.34 gives the Court power to dispense with any of the

Rules “either before or after the occasion for compliance arises”. In the

inherent right of a court in regulating its own proceedings it can allow a

person, not being either a party or a party’s lawyer, to conduct a case on

behalf of a party where it is desirable to do so in the interests of justice.32

[236] The directions hearing commenced at 9:35am. The transcript describes

Vice President Lawler as appearing for Ms Jackson. At the

commencement of the hearing, the transcript records the following

exchange:

MR M. IRVING: I appear for the Health Services Union.

HIS HONOUR: Yes, Mr Irving. And I understand, Mr

Lawler, you’re on the line.

MR M. LAWLER: Yes, your Honour. I have an

application to make potentially depending upon what Mr

Irving says. Your Honour should be in receipt – or your

Honour’s associate should be in receipt of an email that I

sent earlier this morning.

HIS HONOUR: I have read the email and I’m sure that

you’ve made a mistake in referring to the proposed role

as a McKenzie friend because I’m sure you’re well aware

McKenzie friends cannot be advocates.

32 Federal Court Practice, LexisNexis, at 43,353

77

MR LAWLER: Well, I have to confess my ignorance,

your Honour. I had thought that was the correct term and

if I have erred, I apologise.

HIS HONOUR: Yes. Well, you might like to consult the

authorities but they’re quite clear that a McKenzie friend

is someone who can sit in court, quietly take notes,

advise, but not act as an advocate and certainly not act as

an advocate in the absence of the party concerned.

MR LAWLER: Of course, your Honour. I would not

countenance for one moment pressing any application

from the court that was inconsistent with the authorities

and I’m grateful to the court for pointing them out to me.

HIS HONOUR: Well, you’re more than welcome to listen

in on the proceedings and you may, of course, take such

notes as you may wish and you may relay what is said

here this morning to Ms Jackson.

MR LAWLER: Thank you, your Honour.

[237] Following this exchange, the hearing then proceeded with Mr Irving on

behalf of the HSU making submissions with respect to various

procedural issues that had arisen in the conduct of the proceedings. After

approximately 10 minutes, however, Vice President Lawler interrupted

and began to participate in the hearing. As the above exchange makes

plain, this was contrary to the express direction of the presiding judge.

78

[238] For the remainder of the hearing, Vice President Lawler made

submissions on behalf of Ms Jackson, asked questions of the Judge,

requested that a photo of Ms Jackson be removed from the internet, and

also provided information about certain aspects of Ms Jackson’s case,

including an intention by her to seek an application that the proceedings

against her be dismissed on account of the Union being guilty of an

abuse of process and fraud on the Court.

[239] Shortly afterwards an article by Pia Akerman appeared in The

Australian entitled: “HSU national secretary Kathy Jackson seeks suit

dismissed against her for ‘fraud’”.

[240] The article included a reference to Ms Jackson being “represented by her

partner Fair Work Deputy President Michael Lawler by telephone”.

[241] On 23 June 2014, Vice President Lawler sent an email to Acting

President Hatcher, Justice Ross, Vice President Catanzariti, Deputy

President Smith, and Senator the Honourable Eric Abetz, the then

Minister for Employment.

[242] In his email, he sought to make a number of points, which included the

following:

[a] In accord with due process, he was writing to inform them of his

“unsought tangential involvement” in the hearing on 20 June

2014, which had received media coverage.

[b] He and his partner had been together since 2008 and he had

ceased having any official responsibility for AIRC/FWA matters

79

involving his partner, the HSU or the health industry long before

there was any controversy surrounding the HSU.

[c] His involvement in the hearing occurred in extraordinary

circumstances, namely that:

(i) Ms Jackson had been fully occupied in the Royal

Commission for some weeks, and found herself

unrepresented at the eleventh hour and with no practical

capacity to ready herself for the hearing.

(ii) She sought an adjournment which was refused

(iii) Distressing personal circumstances on the evening of 19

June 2014 prevented Ms Jackson from sleeping for most

of the night, which meant she was in no position, or state

of mind, to engage with the Federal Court proceedings

(iv) There was no time to obtain a medical report or fresh

legal representation (which she could not afford in any

event)

(v) He adjudged that waking Ms Jackson to participate in the

hearing could be seriously injurious to her health and

would have involved him in a grave breach of his family

responsibilities (such concerns being informed by his

knowledge of advice over time from her treating

specialist)

80

(vi) He took urgent counsel by telephone, confirming his own

view that it would not be contrary to his duties of office

to take the actions that he did

[d] He kept his remarks in the hearing to conveying Ms Jackson’s

position as he knew it to be and assisting the Court with ensuring

that further preparation for the matter was set in motion

[243] On 7 July 2014, Justice Ross wrote to Vice President Lawler saying:

[a] It was his view that any further participation in the Federal Court

proceedings or participation in other proceedings involving Ms

Jackson would not be consistent with the principle that Members

should avoid involvement in matters of public controversy.

[b] He sought Vice President Lawler’s assurance that he would not

participate further in the Federal Court proceedings or participate

in other proceedings involving his partner.

[c] By reason of complaints from other members of the

Commission, Vice President Lawler was not to attend the

workplace whilst on sick leave, and he was to confirm that he

would not use Commission facilities and resources in assisting

Ms Jackson prepare for proceedings.

[244] Justice Ross and Vice President Lawler had a telephone discussion on

14 July 2014, in which they discussed the written correspondence they

had exchanged.

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[245] On 22 July 2014, Vice President Lawler sent an email to Justice Ross, in

which he said, inter alia:

I can say that on 20 June 2014 I acted in good conscience

believing that the brief action I took was not contrary [to]

any ethical duty arising from my Office. I am gratified

that you accept that I acted in good faith in respect of the

brief, unwanted and extraordinary events of that day.

I certainly do not expect such a circumstance to arise

again and I will be taking care to ensure that it doesn’t.

So, in relation to this matter, I give you the assurance you

seek, confident that I will never again be confronted by

such exceptional circumstances.

[246] Also in his letter, Vice President Lawler said that if he had used

Commission facilities and resources to assist Ms Jackson prepare for

proceedings, it would constitute serious misconduct. He said that he

vigorously rejected any suggestion that he had done so, and that any

accusation to that effect could only be motivated by “stupidity or

malice”. He said that he had no difficulty in giving Justice Ross

confirmation that he would not use Commission facilities and resources

to assist Ms Jackson prepare for proceedings.

[247] The Federal Court proceedings between the HSU and Ms Jackson were

next heard before Justice Tracey on 18 July 2014. On that occasion, Ms

Jackson appeared self-represented. Vice President Lawler had no

involvement in that hearing.

82

[248] Ms Jackson next appeared at the Royal Commission into Trade Union

Governance and Corruption on 30 July 2014. With respect to that

appearance, three matters are worthy of note:

[a] On 11 July 2014, a Senior Associate from the Office of the

Solicitor Assisting the Royal Commission sent an email to Ms

Jackson, in which she said:33

Hi Kathy,

I spoke with Michael a little while ago and he

mentioned that he was going to send me further

information (a table) in relation to the NHDA.

Please let me know if you would still to send any

further information. ...

[b] On 25 July 2014, junior counsel assisting the Royal Commission

telephoned Ms Jackson, and said that she was sorry to hear about

Michel and his admission to hospital and that she hoped that he

would be OK. Ms Jackson responded that she had just arrived at

the hospital to see Michael.34

[c] On 29 July 2014, Vice President Lawler telephoned a solicitor

assisting the Royal Commission. Amongst other things, the

33 Jackson MFI#6 – Tab 5. 34 Jackson MFI#6 – Tab 8.

83

solicitor’s file note records that the conversation proceeded as

follows:35

1. Michael called me and spoke to me about the

draft statements he and Kathy were preparing

2. He said that he and Kathy were both “f**ked”

as they had been getting little sleep and had

been constantly working on legal matters.

3. Michael told me that the draft statement

would be sent through to me in the morning

on the 30th at about 7am.

4. ...

6. Michael told me that the media had been

harassing Kathy for some time and that now

he was struggling with the effects of the last

few years, even at his own workplace, where

he had been spoken to by his superiors.

[249] After 30 July there were further appearances by Ms Jackson at the Royal

Commission on 28 and 29 August 2014.

[250] As to the Federal Court proceedings, Ms Jackson continued to default on

a number of orders. On 5 November 2014, Ms Jackson sought an

adjournment of the hearing of the trial (that had been fixed for 1

35 Jackson MFI#6 – Tab 18.

84

December 2014) on the grounds of mental unfitness. After hearing the

evidence of her treating specialist, Dr Pakula, Justice Tracey adjourned

the hearing of the trial until a date to be fixed.36

[251] The trial was subsequently listed for hearing on 29 June 2015.

[252] In the week commencing 8 June 2015, a journalist with The Australian,

Ms Pamela Williams, sent a series of questions to Vice President

Lawler. It would have been obvious that the newspaper was preparing

to run an article about Vice President Lawler, and this led him to have a

telephone conversation with Justice Ross.

[253] On 13 June 2015, an article by Pamela Williams did indeed appear in

The Weekend Australian, entitled “Fronting up for a union mate”. The

article was of considerable length, and included the following assertions:

[a] Vice President Lawler had attracted considerable attention inside

the Fair Work Commission because of his absences of six

months long leave in 2013, and six months sick leave in 2014.

[b] His current sick leave was expected to last until late July or early

August.

[c] His past public appearances by Ms Jackson’s side and his

absence from the Commission’s hearing lists have provoked

deep concerns in the organisation about perceptions of the FWC

being entangled in the HSU factional battles and corruption saga,

as well as a public soap opera.

36 Health Services Union v Jackson [2014] FCA 1215.

85

[d] His work at the Commission appeared to be in inverse

proportion to the escalating pressures on Ms Jackson as her time

in the sun as a whistleblower turned dark in recent years.

[e] The day after he handed down his final decision for 2014 (being

18 June 2014) before taking extended sick leave, he was

photographed smiling, hand in hand with Jackson outside the

Royal Commission into unions in Sydney. And one day after

that, his colleagues at the Commission were stunned by an online

newspaper article reporting that he had appeared in a hearing

before the Federal Court in Melbourne that same day to represent

his partner Jackson, then national secretary of the Health

Services Union.

[f] Appearing in court on behalf of a union official facing corruption

charges raised red flags, not least regarding the ethical standards

expected of a senior member of Fair Work, as well as

perceptions over conflicts of interest

[g] A crucial question was whether Vice President Lawler was on

sick leave at the time and had appeared in the Federal Court on

Jackson’s behalf while claiming he was not fit to attend work, or

whether he was not on sick leave but had permission from the

FWC to absent himself in order appear on behalf of a union

official preparing to face a trial. Either way, Vice President

Lawler was also a member of the independent industrial relations

umpire, and on the face of it, he appeared to be moonlighting in

another jurisdiction.

86

[h] As one observer commented later, Vice President Lawler’s

intervention was akin to a top commissioner from the Australian

Securities & Investments Commission appearing in the Federal

Court to argue the case for a chief executive facing serious

allegations of theft from a company under ASIC supervision

[i] As news of his role spread and was picked over by hostile

bloggers last year, some union officials outside the health sector,

factionally aligned against Jackson, questioned what would

happen if they appeared before Vice President Lawler at the

FWC in the future.

[254] Two days after that article was published, there was a directions hearing

in the Federal Court proceedings on 15 June 2015. Vice President

Lawler attended the hearing in Sydney connected by video link to

Melbourne.

[255] The following day an article by Pamela Williams in The Australian was

published entitled: “Laid-back Michael Lawler’s leave to appear in

court”. Again, it was a relatively lengthy article, which included the

following points:

[a] Ms Jackson was in the course of transferring her interest in their

home to Vice President Lawler.

[b] There was unrest at the Fair Work Commission at perceptions of

conflict of interest due to his very public role in her case while

on sick leave for excess of six months in the past year while

receiving his full pay of $435,000.

87

[c] He held a prestigious position at the apex of an industrial

tribunal that deals with union matters “and yet gives the

appearance of being up to his ears in the HSU Federal Court

case” while appearing unable to attend work at the FWC.

[256] The article contained a picture of Vice President Lawler entering the

Federal Court with Ms Jackson and commentary about his attire

including “corduroy jacket and rumpled blue and white shirt worn

untucked over skinny black jeans with elastic sided boots.”

[257] Later that evening, Vice President Lawler sent an email to Justice Ross,

in which he dealt with the media articles that had been written about

him. He said, inter alia:

I refer ... to our conversation of late last week in relation

to ... questions sent to me by Ms Pamela Williams of the

Australian that presaged the sort of smear pieces that

appeared the Weekend Australian, including the damage

that these false and malicious attacks would do to the

institution. ...

I have acted honestly and honourably at all times, and

always conscious of observing my ethical duties. I am

being attacked falsely and maliciously - because I am the

partner of Ms Kathy Jackson and because of the office I

hold. Her enemies have sought to drag me into the HSU

saga at every opportunity since late 2011. I have not

sought media attention. I have observed the convention

88

that I ought not comment publicly on matters of public

controversy. I have no wish to damage the institution. ...

The suggestions of conflict of interest arising from the

discharge of my family responsibility to my partner are a

malicious beat up. I discussed conflict of interest issues

with you immediately after the commencement of your

Presidency, and have done so on a number of occasions

since. Relevant conflict is a conflict of private interest

with public duty. I repeat for the record that when my

relationship with Ms Jackson was establish [sic] in 2008,

I disclosed it to Guidice J and confirmed arrangements to

exclude any conflict of interest on account of the

relationship. That included arrangements I had already

established in my chambers to avoid dealing with health

industry files pending a reassignment of the health

industry from my panel (as occurred several months

later). Since that time I have had nothing to do Ms

Jackson, the HSU or health industry matters in my

official capacity. There has not been, and is not, any

conflict of interest between my official duties and my

private interests arising from my relationship with Ms

Jackson or from the just support and assistance I have

provided to her privately as her loving partner. ...

I remind you that I have been completely candid with you

as to the precise nature and extent of the assistance that I

was providing Ms Jackson as her partner, including in

relation to the HSU's litigation against her. I have

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described the vast amount of work I have done for her

throughout the period outside of work hours - done out of

necessity because we cannot afford lawyers to defend

against the (objectively) false and malicious attacks that

are being pursued against her, including through the

current Federal Court proceedings. I have described my

central role in marshalling evidence and our strict policy

that nothing I prepare, as a faithful reflection of the

evidence, is used by Ms Jackson unless she first makes it

her own - and "owns" it. I record that you have never

expressed any concern over a conflict of interest arising

from any of that. As I recollect it, you accepted my

analysis in that regard. ...

In relation to today's article, I make no apology for

attending the Federal Court with my partner,

notwithstanding that I am on sick leave. The nature of my

mental health needs, and my sick leave, do not require me

to be house bound or to refrain from dealing with affairs

that impact upon me. My assessment of the state of my

partner's mental health caused led me to regarding it as

my duty to attend with her for necessary support. Further,

I anticipated from events that it was likely that I would be

the subject of some application or adverse comment

during the hearing and that it was reasonably necessary

for me to be in attendance to deal with that eventuality -

as in fact occurred. My mere accompanying of my

partner to that hearing is not a newsworthy matter, and

90

ought not be something that could cause any damage to

the reputation of the Commission. Do the citizens, whose

opinion of the Commission is the focus of attention,

seriously think ill of the fact that a man who happens to

be a senior member of the Commission attends with his

former union official partner in the Federal Court, in

relation to proceedings that have nothing to do with the

Commission - or any area of the Commission's work

performed by him? My attendance at the Federal Court

was dictated by my family responsibility duties, my

official duties did not oblige me to refrain from attending.

Judges and judicial officers do not lose their basic rights

as citizens on account of holding office. I ask you as my

President to come to my reasonable and legitimate

defence on the false public attacks against me. I suggest

that, since the attacks will certainly be continuing,

damage to the reputation of the Commission arising from

these attacks will only be worse if there is no considered,

public response in defence of me (by reference to the

objective facts).

[258] On 20 June 2015, an article in The Australian was published entitled

“FWC’s Michael Lawler ‘said he would work while on sick leave’”. The

article was a detailed report about Ms Carrigan’s complaint to the Fair

Work Commission concerning Vice President Lawler’s behaviour on 27

May 2014, and the Commission’s management of her complaint. The

article noted that as late as 13 June 2015, Justice Ross had written to Ms

Carrigan and said that it was inappropriate to require Mr Lawler to

91

respond to her complaint while he was away on sick leave. The article

then contained the following passage:

Two days after this letter was sent, Kathy Jackson was

back in the Federal Court for an interlocutory hearing,

with Michael Lawler on her arm. In the courtroom, Mr

Lawler spent his time listening intently and bounding

back and forth to the bar table with scribbled notes for

Jackson’s barrister. In between, he was outside smoking

in front of the cameras. It almost seemed like a public

salute.

[259] Again, the article contained a picture of Vice President Lawler entering

the Federal Court with Ms Jackson.

[260] On 22 June 2015, Justice Tracey dismissed an application by Ms

Jackson to have the trial permanently stayed on the grounds that the

proceedings were being prosecuted by the Union for an improper

purpose.37 This was the application that had been foreshadowed by Vice

President Lawler on 20 June in the previous year. Vice President

Lawler did not attend the Court on the day the application was

dismissed.

[261] The HSU’s application for a freezing order came on before Justice

Tracey on 24 June 2015. The Union had learnt that Ms Jackson had

transferred ownership of her home to Vice President Lawler in June

2014. The transfer had not been registered, but the Union alleged that

the transaction was not bona fide and had been entered into so as to 37 Health Services Union v Jackson (No 2) [2015] FCA 670.

92

frustrate potential orders in pending litigation. Accordingly, the Union

applied for orders against both Ms Jackson and Vice President Lawler

restraining registration of the transfer.

[262] Ms Jackson and Vice President Lawler were separately represented by

counsel. The hearing took place in Melbourne, but the representatives of

Ms Jackson and Vice President Lawler appeared by video-link from the

Federal Court in Sydney. Whilst Vice President Lawler was also in

attendance, Ms Jackson was not. Affidavits of Ms Jackson dated 22

June 2015 and Vice President Lawler dated 24 June 2015 were read into

evidence.

[263] At the commencement of his affidavit, Vice President Lawler explained

his attendance in the Federal Court on 15 June 2015:

On 15 June 2015, I anticipated that the Union may seek

to extend its freezing application against Katherine to me

and seek orders against me.

Knowing that the proximity of the listed hearing date

made it likely that the Court might well deal with the

freezing application substantively on that day, and

potentially make any interim order against me, I

determined that I should attend the Court hearing with

my partner to be in a position to deal with the attempt to

involve me personally that I expected.

Just as I had anticipated, on Monday 15 June 2015, Mr

Irving made an oral application for an ex parte order

93

against me to prevent completion of a contract I had

entered with my partner in June 2014 to purchase our

home at Dam Road Wombarra.

[264] Vice President Lawler went on to acknowledge the office that he held,

and the embarrassment caused by his involvement in the proceedings.

He said:

Given my office, I am acutely embarrassed to find myself

in a position where I am obliged to respond to this

application in the present context and say the following:

(a) I have made a life commitment to Ms Jackson and regard

myself as her husband in fact. We have planned to marry

abroad at a planned time, in successive years, namely 2012,

2013, 2014 and 2015. However, the demands of court

proceedings and, in 2014, the Royal Commission, prevented

us from giving effect to those plans.

(b) Since September 2011 Ms Jackson’s enemies have been astute

to seek to involve me publicly in relation to affairs affecting

her, at every available opportunity. I can provide a large body

of evidence to support that contention if it is thought

necessary. I have not sought public attention.

(c) Since late February 2015 I have been the subject of a

concerted campaign of malicious attack in the pages of The

Australian with more than a dozen front page articles devoted

to attacking me or including attacks on me. I say that each of

94

the serious imputations of wrongdoing in that series of articles

is false (and demonstrably so by reference to

contemporaneous evidence that I have been careful to

maintain). However, I am prevented by the conventions

applying to my office, from publicly defending myself by

reference to such evidence that overwhelmingly contradicts

allegations of wrongdoing imputed in those articles.

(d) I make no apology for the support that I have provided to my

partner, in the discharge of my family responsibility duties

and in honouring my promise of support, while at the same

time conscientiously seeking to observe the constraints arising

from my office.

[265] After deposing to various facts and matters relating to his acquisition of

the property at Wombarra that was the subject of the application (all of

which happened in the latter part of 2014), Vice President Lawler sought

to explain why he had delayed in pursuing a loan and completion of the

transaction. He said:

I explain my delay in pursuing that loan, and completion

of the transaction, with greater vigour as follows.

I have been subjected to enormous and sustained

personal stress since late 2011. I have been subjected to

numerous false attacks throughout the period from late

2011. During the second half of 2014, I became quite

debilitated by my own mental health difficulties, in which

attacks against me within my tribunal have been a major

95

contributing factor. On the advice of my psychiatrist, I

was admitted to a mental health facility for a short period

and advised that I required an extended period of sick

leave to address my mental health issues. My productive

capacity was severely limited in this period.

I focused on my recovery and returned to work in

December 2014. I remained at work until early April

2015. In that time I dealt with all files that were

allocated to me. I repeatedly asked for additional work

because I considered that I was being under-utilised. I

have only 1 outstanding decision from that period.

During that period I consciously made my official duties

my first priority and neglected private matters to ensure

that my work was being performed well.

[266] He concluded his affidavit with the following:

I am not going anywhere. I occupy an office that I intend

to continue, having devoted more than a decade to that

service.

[267] Vice President Lawler’s affidavit attracted considerable media attention.

These articles continued to make reference to the fact that he was

actively involved in legal proceedings, and had been entering into

transactions connected with Ms Jackson’s litigation, all whilst being on

sick leave from the Fair Work Commission. To take just two examples,

in an article entitled “Michael Lawler picks up Kathy Jackson’s house,

school fees”, The Australian began its report as follows:

96

As he started an almost six-month stint of fully paid sick

leave on $435,000 a year last June, the Fair Work

Commission vice-president Michael Lawler was far from

idle.

Newly released documents show he engaged in a series of

property transactions on the NSW south coast involving

magnificent adjoining estates, at the same time laying the

groundwork for a financial management program for his

partner, former union boss Kathy Jackson

[268] In another article entitled “Kathy Jackson and Vice President Lawler’s

home deal stopped by federal court”, before setting out in some detail

the complex legal dealings between Mr Lawler and Ms Jackson in 2014,

The Australian set the context as follows:

On Wednesday, June 18, 2014, Lawler had signed off his

last decision at Fair Work — the industrial relations

tribunal overseeing union and employer disputes relating

to everything from wages to unfair dismissals. He was

starting six months of sick leave, with certificates signed

by a medical practitioner. As a senior member of the

commission, Lawler was on $435,000, with conditions set

down years before. Among other things, there was no

limit to the amount of sick leave permitted.

[269] The proceeding commenced with counsel for the Union making detailed

submissions, following by submissions in reply by counsel for Ms

Jackson. In the course of those submissions, it became apparent that on

97

an important issue, further evidence from Ms Jackson was needed.

Justice Tracey asked whether Ms Jackson would be prepared to give an

undertaking not to transfer the property while the matter was adjourned

for a few days to allow her to put on that evidence. An adjournment of

about 10 minutes was then granted to allow counsel to obtain

instructions as to whether that undertaking would be given by both Ms

Jackson, and Vice President Lawler.

[270] When the matter resumed some 10 minutes later, counsel for Ms

Jackson indicated that she had instructions to give the undertaking.

Justice Tracey then asked counsel for Vice President Lawler whether

she had the same instructions. Counsel said that her instructions had

been withdrawn, and that she no longer acted on his behalf. At that

point, Vice President Lawler began addressing the Court. He said, inter

alia:

[a] it had been necessary to withdraw his counsel’s instructions

because she had not had a sufficient opportunity to apprise

herself of all the relevant facts, having only been briefed little

over an hour before the hearing had commenced

[b] it had been asserted in Court that he was not a bona fide

purchaser, and with the press in attendance, it was a matter that

would be reported luridly the following day

[c] the property had been purchased for full equity value, which Mr

Lawler was paying, albeit with some difficulty

[d] there had been no wrongdoing by him

98

[e] the transaction with Ms Jackson had been structured in the way

that it had for legitimate reasons concerning stamp duty

[f] his rights should not be interfered with

[271] The transcript records the following exchange:

Mr LAWLER: Now, if your Honour is minded to – is

not attracted by the submissions that I have made, which

I think have explained the matters that Mr Irving has put

– I should add, also, he makes a point about drawdowns

out of the mortgage. It’s a joint mortgage with me as the

joint borrowing guarantor, and I’m the one that has been

operating the mortgage, including during the time that

my partner was confined in the South Coast Private

Hospital. I’ve been doing it in consultation with her,

which I do very sensitively. But your Honour might recall

that there were lurid allegations made from the bar table

by Mr Irving about Ms Jackson having a million dollars

in equity and having alienated it already and already

paid it away, and having other properties. There’s not a

single, solitary jot of evidence that has been led in

support of those matters. Mr Beazley - - -

HIS HONOUR: Mr Lawler, you are appearing for

yourself, not for Ms Jackson.

MR LAWLER: No, your Honour, but - - -

HIS HONOUR: I do not - - -

99

MR LAWLER: - - - I am being tarred with the same - - -

HIS HONOUR: I will not hear - - -

MR LAWLER: I’m being tarred with that brush, am I

not?

HIS HONOUR: I will not hear you in relation to Ms

Jackson. She is separately represented. The purpose of

the adjournment was for your counsel to obtain

instructions as to whether you would be willing to

voluntarily extend the undertaking that you have

presently given to the court until 4.15 on Monday. I have

not heard - - -

MR LAWLER: Yes, your Honour. In those

circumstances - - -

HIS HONOUR: I have not heard a word on that issue. I

would ask you, please, to address that matter.

MR LAWLER: Yes, your Honour. I am prepared to give

that undertaking. I do it reluctantly, but I note that it

prevents – it impedes the – it will impede the further

payment of legal fees. But I will resume that argument on

Monday, if I may.

[272] Also on 24 June 2015, Justice Ross sent a letter to Vice President

Lawler, responding to his email of 16 June 2015. In the letter, Justice

Ross said, inter alia:

100

I also need to comment on your involvement in the

litigation involving your partner, Ms Jackson. I

appreciate that you have not sought media attention and

that you do not wish the Commission to be damaged by

public controversy.

Importantly, I note your repeated assurance that you

ceased to have any involvement in your official capacity

with matters involving your partner, the HSU or the

health industry long before there was any controversy

surrounding the HSU.

In relation to you assisting your partner with the

litigation, I reiterate the point I have made to you on

previous occasions, a clear separation must be

maintained between your position as a Member and your

family commitments.

I note that on 7 July 2014 I wrote to you following your

participation in Federal Court proceedings involving

your partner, informing you of my view that further

participation in those proceedings or in other

proceedings involving your partner would not be

consistent with the principle that Members should avoid

involvement in matters of public controversy. At that time

you explained the exceptional circumstances that led to

your attendance at the Federal Court on 20 June 2014

and provided me with an assurance that you would not

participate further in those proceedings or in other

101

proceedings involving your partner. You also confirmed

that you had not utilised and would not utilise

Commission facilities or resources in assisting your

partner.

You have suggested that merely accompanying your

partner to a hearing is not newsworthy and ought not to

be something that could cause damage to the reputation

of the Commission. However, that clearly is not the case.

Rightly or wrongly, your involvement in these

proceedings will continue to attract significant media

attention and raise questions for the general public about

the propriety of your involvement, particularly if you

remain involved whilst on paid sick leave from the

Commission.

In my view the reputation of the Commission, and your

own standing as a Member, is being damaged by your

continuing public involvement in the proceedings

involving your partner. Your attendance at these

proceedings is inconsistent with the principle that

Members should avoid involvement in matters of public

controversy and accordingly you should cease attending

the proceedings in any capacity.

[273] The following day, a number of newspapers ran the story of Vice

President Lawler’s appearance in the Federal Court. In an article

entitled “Lover, lawyer, judge, client: A day’s ‘work’ for Michael

102

Lawler”, The Australian reported on the events of the previous

afternoon.

[274] On 26 June 2015, Vice President Lawler sent an email to Justice Ross,

in which he said, inter alia:

[a] He attended the Federal Court on 15 June 2015 because he

anticipated, on good grounds, that an application would be made

that day for an order against him personally and that his

attendance would be necessary in that regard.

[b] An application was made, and Justice Tracey required him to

give an undertaking so as to allow the hearing of the application

to be adjourned. Vice President Lawler gave the undertaking.

[c] He was obliged to attend at the Federal Court on 24 June 2015

because it concerned the hearing of an application against him

personally. He could not afford to pay for proper representation,

and it was impossible to properly brief any counsel with all the

relevant facts in such a short period of time.

[d] He did not attend on 22 June 2015, and he has not attended with

Ms Jackson when only her interests have been at stake

[e] Basic principles of procedural fairness dictate that he has a right

as a citizen to defend an application for orders brought against

him personally, that seek to interfere with his lawful rights.

Those rights are not diminished by the fact of his office

103

[275] The trial of the proceedings against Ms Jackson had been fixed to

commence on 29 June 2015. Neither Vice President Lawler nor

Ms Jackson appeared personally at the Federal Court on that day.

Instead, when the proceedings were called on, counsel appearing for Ms

Jackson advised the Court that she had filed a debtor’s petition under s

55 of the Bankruptcy Act 1966 (Cth).

[276] Counsel for the HSU, who had had no notice of Ms Jackson’s

bankruptcy, sought an adjournment so that the Union could consider its

position. It subsequently sought leave to continue to take fresh steps in

and to continue with the proceedings. Leave was granted by Justice

Tracey on 3 July 2015, and a trial was fixed for 7 July 2015.38 The

application had been served on Ms Jackson and her trustee, but

Ms Jackson did not appear at the hearing on 3 July 2015. Subject to

some qualifications, the trustee supported the Union’s application.

[277] The trial of the proceedings commenced on 7 July 2015 and ran for three

days. Neither Ms Jackson nor her trustee appeared at the trial and as a

result, the evidence of the Health Services Union was not challenged.

On 19 August 2015, Justice Tracey ordered Ms Jackson to pay to the

Union a total of $1,406,538.16 in compensation.39 Questions of interest

and costs were adjourned for further submissions by the HSU.

[278] On 9 September 2015, Ms Jackson filed two appeals against the

judgment of Justice Tracey. It was stated in the two notices of appeal

that they were prepared by Ms Jackson “with private assistance”.40

38 Health Services Union v Jackson (No 3) [2015] FCA 694. 39 Health Services Union v Jackson (No 4) [2015] FCA 865. 40 Jackson v Health Services Union [2015] FCAFC 188 at [15].

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Because of the Four Corners program, it is reasonable to infer that this a

reference to assistance provided by Vice President Lawler. The hearing

of the appeal took place on 19 November 2015. There was no

appearance at the hearing by Ms Jackson. On 17 December 2015, the

Full Court unanimously dismissed the appeals as incompetent.41

7.7 Litigation assistance – Misbehaviour?

[279] By 2014 Vice President Lawler’s relationship with Ms Jackson had been

well and truly exposed. There was no question of involvement as a

Member of the FWC in an HSU matter, as had been the case in 2008.

[280] I do not doubt his widely publicised involvement in Ms Jackson’s

litigation was damaging to him and to the FWC. The concern of Justice

Ross is very understandable. Nevertheless, in marked contrast to the

Four Corners program, Vice President Lawler did not seek that

publicity. There were some human mitigating factors in his concern for

his partner. What he did, aiding his partner in defending serious

litigation, appearing in a court on her behalf, and in attire some might

consider outré, did not amount to illegal or immoral or dishonourable

conduct. As Sir Richard Blackburn stresses in the passage quoted above,

misbehaviour in this context involves conduct which is at least morally

wrong.

[281] His conduct might be said to be embarrassing, both for himself and the

FWC, but it was not illegal or immoral or dishonourable. Extensive

hostile media coverage did not make it so.

41 Jackson v Health Services Union [2015] FCAFC 188.

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[282] In the context of “misbehaviour”, the fact that a judge has become

unpopular, or the subject of public attacks, cannot be conclusive – one

must ask the further question whether there is some reasonable basis in

the judge’s conduct for such unpopularity or attacks. Otherwise the

descendants of the Act of Settlement would provide no protection for a

judge who had simply fallen out of favour with the community, or some

powerful section of it.

[283] Vice President Lawler appeared in the Federal Court by telephone or

video on three occasions, once in 2014, and twice in 2015. In 2015 he

was appearing on his own behalf as a respondent against whom relief

was sought, so no impropriety could be involved – indeed to prevent his

appearance might well in itself be improper, even a contempt of court.

[284] There is the separate question of his disregarding the direction given by

Justice Ross in July 2014 and departing from an assurance he gave

(putting aside for the moment the reservation that the assurance did not

apply where “exceptional circumstances” existed).

[285] In the context of the extreme sanction of removal, the bare fact that a

judge (or equivalent) disregarded a direction of the head of jurisdiction

is unlikely in itself to constitute “misbehaviour”. If a judge does X

despite being told by the Chief Justice not to do X the question is

whether X in itself constitutes misbehaviour.

[286] The media coverage largely rested on the assumption that Vice President

Lawler’s involvement in his partner’s litigation showed he was not

really sick. This assumption does not appear to have been based on any

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medical evidence and was contrary to the opinion of an appropriately

qualified treating specialist.

[287] Dr Pakula had almost 30 years of experience as a specialist psychiatrist.

He held responsible clinical and academic positions. His practice was

conducted at about half an hour’s drive from the Lawler/Jackson home

in Wombarra. So there is no question of doctor-shopping around for a

convenient diagnosis.

[288] Applying objective standards, the hypothetical Fair Minded Lay

Employer would think along the following lines:

Still, if he is stuck at home all day it is

hardly surprising that, being a lawyer himself, he should

try to help his partner engaged in difficult litigation.

Although, frankly, I don’t think he would be a lot of help.

[289] All things considered, I do not think Vice President Lawler’s conduct in

this regard provide a reasonable basis for both Houses to consider

praying for his removal on the ground of misbehaviour.

7.8 FWC processes to manage conflicts

[290] Conflicts of interest can arise from an infinite range of circumstances.

As discussed in the Guide, the judge may have some financial, political,

familial, emotional or other connection with one of the parties. Or the

Redacted: Relates to conclusion based on personal medical/health information

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judge may say something suggesting an ingrained prejudice against one

of the parties, going beyond tentative or provisional comments.42

[291] Applying a familiar technique, courts have resolved these problems by

erecting an imaginary, hypothetical person and enquiring what such a

person’s reaction would be. In this case, it is the Fair Minded Lay

Observer: Ebner v Official Trustee in Bankruptcy.43

[292] As to managing conflicts of interest, s 640 of the Fair Work Act

provides:

(1) This section applies if:

(a) an FWC Member (other than the President) is

dealing, or will deal, with a matter; and

(b) the FWC Member has or acquires any interest

(the potential conflict ), pecuniary or otherwise,

that conflicts or could conflict with the proper

performance of the FWC Member's functions in

relation to the matter.

(2) The FWC Member must disclose the potential conflict

to:

(a) a person who has made, or will make, a

submission for consideration in the matter; and

42 See eg Shylock v Antonio, reported in The Merchant of Venice, Act IV scene i lines 3-6 43 (2000) 205 CLR 337

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(b) a person who the FWC Member considers is likely

to make a submission for consideration in the

matter; and

(c) the President.

(4) The President must give a direction to the FWC

Member not to deal, or to no longer deal, with the

matter if:

(a) the President becomes aware that an FWC

Member has a potential conflict in relation to a

matter (whether or not because of a disclosure

under subsection (2)); and

(b) the President considers that the FWC Member

should not deal, or should no longer deal, with the

matter.

[293] A substantially equivalent provision was contained in s 85 of the

Workplace Relations Act.

[294] As to processes for managing conflicts, some of the suggestions in the

Guide44 may be summarised as follows:

[a] If the judge clearly considers disqualification is required he or

she should so decide at the earliest opportunity

44 P 15

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[b] If uncertain, the judge should raise the matter with the head of

jurisdiction or colleagues or appropriate court officer

[c] If there is still uncertainty, the parties should be invited to make

submissions in open court

[295] The foregoing of course assumes either that the judge recognises there is

a possible conflict and sets in motion the sort of consultations

mentioned, or the matter is known to the parties or at least to the one

likely to be adversely affected.

[296] When these circumstances do not exist, as for example, when the judge

considers, whether rightly or wrongly, there is no possibility of conflict,

it is difficult to see how there can be any process for management,

unless and until some smoking gun emerges.

[297] The present provisions in the Fair Work Act for dealing with conflicts of

interest seem appropriate. It is difficult to see what more could be

provided. As a matter of education, the circulation within the

Commission of the Guide would be helpful.

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8 FOUR CORNERS PROGRAM; TERMS OF REFERENCE 5 & 6

[298] On the evening of Monday 19 October 2015 ABC TV broadcast a Four

Corners program entitled “Jackson and Lawler: Inside the Eye of the

Storm”. The program had been the subject of promotional

advertisements during the preceding week. It was re-broadcast on the

following day. It was entirely concerned with Vice President Lawler

and Ms Jackson.

[299] Four Corners is a regular ABC program, widely viewed throughout

Australia.

[300] In this section I shall first quote some of the more controversial parts of

the program and then discuss their relevance to the critical misbehaviour

issue.

8.1 Offensive language

[301] In the program Vice President Lawler gratuitously uses very coarse

language, including the words “bullsh*t”, “c**t-struck” and “f*ck”.

[302] The broadcast at the start of the program warns of “Extremely coarse

language”.

8.2 Comments about FWC and trade unions

[303] In the program, Vice President Lawler says: “I come to work with a

sense of dread about the snake pit that I am about to enter.”

[304] His use of the term “snake pit” appears to be a reference to the FWC.

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[305] Also in the program the presenter, Ms Caro Meldrum-Hanna, says:

“In a five-hour monologue, Michael Lawler claims that

he and his partner, Kathy Jackson, are the victims of a

sophisticated, complex conspiracy against them

beginning in 2012. Led by individuals high up in the ALP,

working in concert with corrupt union officials to smear

them both, ruin their credibility and destroy them

completely. He calls it ‘the Machine’.”

[306] Vice President Lawler says:

It is a thing that is concerned with the way in which

power is acquired and maintained within unions and

acquired and maintained within the ALP. It is a thing

concerned with the relationship between the unions and

the ALP and the manner in which the factional system in

the ALP operates.”

8.3 Conflicts of interest

[307] The presenter says:

In March 2008 Kathy says they began a romantic

relationship. It was a highly controversial union: the

Vice President of the Fair Work Commission [sic, in fact

the AIRC] in bed with the head of the union he was meant

to independently adjudicate for or against in massive

industrial disputes.”

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(To Kathy Jackson) “Did you reach out to him or did he

reach out to you?”

Kathy Jackson: “No, I reached out to him. Um, and that

was, um, during the conciliation but, like mid … in my

mind it’s probably about March, ‘cause I had left, I’d left

my husband by that point. But in March, April, May of

2008, um, we were in regular contact in relation to the,

um, conciliation and then in about July, August of 2008,

um”

Vice President Lawler (off-screen): “Can I interrupt here

‘cause you – darling, just as a matter of fact you’ve just

got that wrong as a matter of historical fact.”

Kathy Jackson: “No I haven’t.”

Presenter (voiceover): “At this point in my interview with

Kathy Jackson Michael Lawler interrupts.”

Vice President Lawler (off-screen): “The conciliation

occurred in 2007 and I had a professional relationship

with you as a party. And then the conciliation finished

and then in early 2008 you separated from Jeff and we

had …”

Kathy Jackson: “Had the conciliation finished then?”

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Vice President Lawler (off-screen): “The conciliation had

finished – but this is a matter of historical record. You

can go back …”

Presenter: “The timing of the start of their romantic

relationship is dangerous territory for Michael Lawler, a

glaring conflict of interest, one he kept secret for five

months – and, crucially after he’d mediated on at least

one private conciliation involving his lover; a bitter

dispute between the HSU, the Government and various

health sector employers.”

Presenter (to Vice President Lawler): “It’s been reported

that you favoured the union over the employers – or, say,

Government representatives in this private conciliation.”

Vice President Lawler: “That’s a lie.”

8.4 Secret tape recordings

[308] In the program the presenter says:

When Kathy Jackson was first accused of being a

fraudster in 2012, behind the scenes Michael Lawler

made an extraordinary decision. He began recording

private phone conversations with his boss, the President

of the Fair Work Commission, Justice Iain Ross, without

his knowledge.

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During some conversations, Michael Lawler and Iain

Ross discuss Kathy Jackson’s case.

[309] The following extract of a telephone conversation is then broadcast:

Ross: “How’s Kathy bearing up with … ‘cause I think

you’ve got the Federal Court thing?”

Lawler: “Oh, not very well. Oh it’s a, it’s a nightmare,

Iain. It’s just an absolute bloody nightmare.”

Presenter: “Michael Lawler now has around 60 audio

files; hours of top secret recordings.”

[310] There is then the following extract, said to be made in March 2015.

Ross: “Hey, Michael.”

Lawler: “Oh, g’day, Iain, How are you going?”

Ross: “Not bad.”

[311] The presenter then says:

In this recording, Michael Lawler and President Iain

Ross discuss Lawler’s extended sick leave. Lawler says

that in this conversation, Iain Ross tells him there’s no

cap to his sick leave entitlements.”

[312] The recording continues:

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Ross: “I think, um, your health’s the first priority. Yeah.

And there’s no, um … I’ll, um … er, take responsibility

for any amounts of sick leave you, you seek. There’s no

cap or anything like that.”

Lawler: “Oh, no, no. I understand there’s no cap on it.”

[313] Lawler then says on the program:

And then he writes to me, denying he said anything to that

effect.

[314] The presenter says that Lawler gave “us” (presumably the ABC) a copy

of that letter, written by Justice Ross three months after the phone

conversation.

[315] The presenter reads from the letter:

I reject the suggestion that I made any statement to you to

the effect that you had unlimited entitlement to sick leave.

[316] On the program Vice President Lawler then gives a demonstration of

how he recorded the conversations.

[317] The presenter asks him:

How do you think Iain Ross will react when he discovers

you have made those recordings?

[318] Vice President Lawler replies:

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I imagine he will be, ah, er, very annoyed indeed.

8.5 Mr David Rofe QC

[319] In the program, there is broadcast a recording of a telephone

conversation that Vice President Lawler had with Mr David Rofe QC.

[320] Mr Rofe is an elderly, wealthy, retired barrister who suffers from

advanced dementia.

[321] In June 2013 he had granted a power of attorney to Vice President

Lawler. In June 2014, acting under that power and using $1.3 million of

Mr Rofe’s funds, Vice President Lawler purchased at auction a house in

Mr Rofe’s name across the road from Lawler and Jackson’s home in

Wombarra, on the coast south of Sydney.

[322] Within hours Mr Rofe revoked the power of attorney. Vice President

telephoned him to try and change his mind.

[323] In the recording of the conversation broadcast on the program

Mr Rofe says “You have no authority from me to buy that house”, to

which Vice President Lawler responds, “I know I don’t. I know you said

not to.”

8.6 Receipt of HSU monies

[324] In the program, a number of facts and matters are reported with respect

to this issue, including the following:

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[a] The Federal Court has ordered Ms Jackson to pay the Health

Services Union an amount of $1.4 million for misusing union

funds. The Judge is reported as saying she had shown a

“pervasive sense of entitlement”.

[b] There is said to have been 34 trips costing $175,000 over eight

years. Film is shown of Vice President Jackson and Ms Jackson

holidaying in Santorini, Piccadilly Circus and California.

[c] Vice President Lawler says:

It turns out that I have been the beneficiary of, um,

airfares and a small amount of accommodation that

was paid for by the union. I didn’t know that at the

time. … I did pay for parts of it. If I thought that I

was actually the recipient of stolen money, I’d be

wanting to repay it myself, but I don’t believe that I

am.

[d] An allegation is made that Ms Jackson unlawfully transferred

Health Services Union funds into the mortgage of her Balwyn

home, owned jointly with her then husband, and subsequently

into the Wombarra home owned by herself and Lawler.

[e] Vice President Lawler says the transactions are “prima facie

crooked and … need an explanation”.

[f] Later he says the funds were “in the order of $50,000” and

represent payment of monies from “the slush fund of the number

three branch”. The explanation is “not a very palatable

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explanation but it’s an explanation nonetheless and it’ll be given

at some point”.

[g] On about 7 October 2015, Joint Taskforce Heracles, consisting

of New South Wales, Victorian and Australian Federal Police,

conducted a search of Vice President Lawler’s Wombarra home,

for the purposes of investigating whether he and Ms Jackson had

benefited from misappropriated union funds.

8.7 Taking leave to “help your partner”

[325] In the program Vice President Lawler says:

There is absolutely nothing wrong with taking leave to

help your partner defend herself against unjust attacks.

In fact, I would have thought most Australians would

regard that as an honourable and decent thing to do.

8.8 Willing involvement in program

[326] Clearly Vice President Lawler took a willing and active part in the

preparation of the program. Apart from anything else, according to the

presenter, he spent five hours in a “monologue” over his trade union

conspiracy claims.

8.9 Public reaction

[327] While trial by media is usually something to be deprecated, the special

feature of the present case is that Vice President Lawler chose to

vindicate his reputation by an appeal to the court of public opinion. So

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it is not unreasonable to look at the public reaction, at least as

represented by the mainstream media. This is particularly so because, as

discussed above, public reputation and trust is basic to the working of

the constitutional underpinning of judicial independence.

[328] The response to the program was universally hostile. The tone was that

of scorn and derision.

[329] In no particular order, some fairly representative samples include the

following.

[330] The Age published the following opinion piece on 20 October 2015 by

Ben Schneiders, entitled “Jackson’s Partner is Compromised and Must

Go”:

Lawler’s rambling, bizarre performance on ABC’s Four

Corners and defence of his corrupt partner Kathy

Jackson does him no credit, nor the work of the Fair

Work Commission, where he is vice-president. ...

Lawler is now terribly compromised, despite occupying

one of Australia’s most senior judicial or quasi-judicial

roles, helping oversee our industrial relations system. He

should not be allowed to continue.

[331] On 21 October 2015, The Daily Telegraph published the following

editorial, entitled “Bizarre Attempt to Garner Sympathy”:

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It is possible that Michael Lawler and Kathy Jackson

thought that their Monday night appearance on Four

Corners would restore public affection.

Instead the pair’s indulgent behaviour and frankly

bizarre comments reduced public sympathy even further.

[332] On 21 October 2015, The Australian published the following editorial,

entitled “Delusions and Bad Judgment”:

After watching Mr Lawler’s self-indulgent

performance on the ABC’s Four Corners on Monday,

most Australians may conclude he is ill-suited to the job

he holds ...

As Employment Minister Michaelia Cash says, public

confidence in Fair Work Australia needs to be

maintained. Mr Lawler has dragged it to a low ebb.

[333] On 21 October 2015, Australian Financial Review published the

following article by Ewin Hannan, entitled “Forget the Soap Opera,

Lawler is in Trouble”:

In seeking to save himself, Michael Lawler appears

prepared to damage the reputation of Fair Work

Commission President Iain Ross.

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[334] On 21 October 2015, the Herald Sun published the following editorial,

entitled “Lawler Must Go”:

Michael Lawler must resign, or be sacked. As Fair Work

Commission vice-president, he is a quasi-judicial officer

who has shown a shocking lack of judgment. His

performance on the ABC’s Four Corners on Monday

was, while entertaining, bizarre. In the end he has

rendered himself unsuitable for office.

[335] On 21 October 2015, The Age published the following editorial, entitled

“Secret Tapes, Sick Leave and Grand Delusions”:

If confirmation were needed that Michael Lawler is not fit

to remain in the Fair Work Commission, it came on

Monday with a bizarre appearance on ABC’s Four

Corners program. Mr Lawler should take whatever

vestiges of decency he might retain and stand down from

the commission. If he does not, then it will be left to

Parliament’s two houses to decide whether his continued

tenure is in the best interests of this vital tribunal. We say

it is not.

[336] On 24 October 2015, The Age published the following article by Martin

Flanagan, entitled “Most Ill-Advised Public Foray Ever”:

[After noting the analogy with the libel case unwisely

brought by Oscar Wilde against the Marquess of

Queensberry the writer continues]

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The question then becomes whether Lawler and Jackson

should have been protected from themselves. I don’t

believe so. There is a legitimate public interest in their

story at multiple levels.

The person in the program I feel sorry for is Lawler’s

boss, Iain Ross. Discussing Lawler’s sick leave, he

sounded like someone trying to show decency to an ill

workmate. And that is a whole lot more decency that

Lawler, in taping their private conversation and making

it public, showed Ross.

8.10 Misbehaviour?

[337] Before considering the conduct referred to in sections 8.1 to 8.7 above I

would emphasise that the overall impact of Vice President Lawler’s

involvement in the program is critical. This is a case where the whole is

greater than the sum of its parts.

[338] Although by no means the most serious ground for criticism,

nevertheless the vision of a middle aged quasi-judicial figure presenting

on national television home movies of overseas holidays with his

girlfriend, accompanied by saccharine lovers’ chitchat, is at least

undignified.

[339] It is likely to provoke that most insidious form of damage to reputation

and authority – ridicule.

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(a) Offensive language

[340] The spontaneous use of coarse language as a result of some accident or

provocation is an everyday occurrence, even amongst the most

respectable people.

[341] What happened here is quite different. The expletives were not deleted.

They were deliberately built into a widely broadcast television program.

The language, in particular the term “c**t-struck”, was used by Vice

President Lawler as a familiar rhetorical technique, the humorous

exaggeration of an opponent’s argument, in the present case that he had

been misled into error by Ms Jackson’s physical attractions.

[342] While perhaps not decisive if considered in isolation, this incident is

consistent with the overall impression of a person recklessly indifferent

to his standing and reputation as a public official with the rank and

status of a judge, and the reputation of the FWC.

(b) Comments about FWC and Trade Unions

[343] These comments are quite unworthy of a person in high office who owes

a duty of loyalty to the important body in which he holds high office.

They are very destructive of public confidence in him and the FWC.

[344] As far as the FWC is concerned, they do not even present as raising

whistleblower matters of public interest. Rather they smack of the

airing of personal grievances.

[345] The reference to (unnamed) trade unions manifests a preconceived

prejudice against bodies who are likely to be very frequent parties before

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the FWC. It is like a State Supreme Court judge appearing on national

television and saying that personal injuries claimants are usually crooks

and malingerers.

(c) Conflicts of interest

[346] Compounding the serious matter of conducting the conciliation

conferences in August 2008 with Ms Jackson representing one of the

parties, Vice President Lawler defended himself by giving a false

narrative of the chronology.

(d) Secret tape recordings

[347] Under s 7(1)(b) of the Surveillance Devices Act 2007 (NSW) it is an

offence to use a listening device to record a private conversation to

which the person is a party. The maximum penalty for an individual is

five years imprisonment.

[348] There is a defence under s 7(3)(i) if the “principal party” (“a person by

or to whom words are spoken in the course of the conversation”)

consents to the listening device being so used and the recording is

“reasonably necessary for the protection of the lawful interests” of that

principal party.

[349] A body of case law on the concepts of “lawful interests” and

“reasonably necessary” is discussed in the judgment of Justice Ward

(with whom Justices Harrison and R A Hulme agreed) in the New South

Wales Court of Criminal Appeal in DW v R.45 As to the latter concept,

45 DW v R [2014] NSWCCA 28.

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the same court in Sepulveda v R46 said that “reasonably necessary”

means “reasonably appropriate”. The test is an objective one, to be

judged upon bases or grounds that exist at the time of the recording.

Whether other steps are open to the person is relevant.

[350] In the context of a discussion about sick leave I do not think that, at the

time of the secret recording of the conversation with his colleague (who

at that stage does not appear to have taken any adverse decision on sick

leave), this was a reasonably appropriate step for Vice President Lawler

to take.

[351] Section 11 of the Act then provides that a person must not publish, or

communicate to any person, a private conversation that has come to the

person’s knowledge as a result of the use of a listening device in

contravention of a provision of Part 2 of the Act. Again the maximum

penalty for this offence is five years imprisonment.

[352] Under this section there does not appear to be any equivalent to the s 7

protection of lawful interests defence.

[353] Vice President Lawler both communicated (to the ABC) and published

the recording of the private conversation.

[354] On the balance of probabilities, but having regard to the seriousness of

the allegation, it would seem that Vice President Lawler has committed

serious offences against the Surveillance Devices Act.

46 [2006] NSWCCA 379; 167 A Crim R 108 at [139], per Johnson J (with whom

McClellan CJ at CL and Hislop J agreed).

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[355] Of equal importance, however, and as something reflecting seriously on

Vice President Lawler’s character and reputation, is the betrayal and

humiliation of a friendly colleague who had been very sympathetic to

him.

[356] Justice Ross was genuinely concerned about Vice President Lawler’s

health and wellbeing. The latter would have well known that.

[357] A meeting opens with the sort of cheerful greeting one would expect

between friendly work colleagues in Australia: “Oh, g’day Iain. How are

you going?” All this is being secretly recorded. As Vice President

Lawler subsequently says on the program, with no hint of regret, he

recognises Justice Ross would be “very annoyed indeed”.

[358] The aim of this shabby exercise is to trap Justice Ross into some

inconsistency. For the program Vice President Lawler provides the

presenter with a letter from Justice Ross, written three months after the

recorded conversation, in which he writes “I reject the suggestion that I

made any statement to you to the effect that you had unlimited

entitlement to sick leave”.

[359] In truth there is no inconsistency. It was unarguably true that there was

no “cap”, in the sense of a maximum number of days sick leave which

could be taken in a year, or over some other stipulated period. That is

the meaning conveyed by Justice Ross in the recorded conversation.

But that was quite different from saying that Vice President Lawler

could take any sick leave he liked, that it was entirely a matter for him.

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[360] All this has to be seen in the context of a system, informal no doubt but

nonetheless real, in which Members, as responsible men and women,

would act fairly and reasonably and the President would respond to

requests in similar vein.

(e) Mr David Rofe QC

[361] This episode involves a private matter, unconnected with Vice President

Lawler’s role at the FWC. Presumably he chose to include it in the

program because the relationship of Ms Jackson and himself with Mr

Rofe was included in the extensive adverse publicity he had received in

the media.

[362] The segment does not show him in a very good light, clearly disobeying

the wishes of the grantor of the power.

[363] I suppose it could be regarded as embarrassing for him and

demonstrating again a lack of self-awareness.

[364] In itself I do not see this as misbehaviour in the relevant sense.

(f) Receipt of Health Services Union monies

[365] This does not involve any clear admission of wrongdoing by Vice

President Lawler. Again it is an embarrassing matter to be trawled

through the public space.

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(g) Taking leave to “help your partner”

[366] This statement in the program would convey that such leave would be at

the complete option of the leave-taker, could be indefinite in point of

time, and could be taken whatever the nature of the partner’s business or

personal affairs which required the leave-taker’s help, and would be

irrespective of the leave taker’s capacity to perform normal employment

duties.

(h) Conclusion

[367] In his email of 27 January 2016 Vice President Lawler says in relation to

the Four Corners program:

The second and more factually complicated aspect [of the draft report] relates to the Four Corners programme. I now accept that participation in the Four Corners programme was an error of judgment. I am sure you would understand that it is difficult for me, given my current condition, to be objective about decisions that I have made; but certainly persons in whom I repose confidence take the view that my judgment in relation to the participation of the programme was highly likely to have been infirm and affected by my then medical condition. Further, an understanding of the conditions upon which I participated in the programme and a review of the entirety of the material that I provided to the Four Corners programme, are important in judging my actions.

The final programme produced was, as you have commented, a production that gave a very adverse impression. Whatever the origin of their motive, this was a heavily edited product that was inconsistent with representations that had been made to me by the

129

ABC prior to my agreement to participate and did not, in any way, reflect a fair representation of the entirety of the information that I conveyed to Four Corners.

In order for you to judge why I contend that the programme was very selectively edited in order to produce a distorted and adverse picture, it is necessary for you to understand the content of what was represented to me and to provide to you the whole of the material I provided to the ABC. This would require a great deal of work, which, as I have explained, is entirely beyond me at present.

Connected to this second aspect, there is also more you need to know for me to persuade you that your preliminary view that I cannot make out a defence to an allegation that I engaged in conduct contravening the Listening Devices Act 1984 (NSW) is incorrect; but that, again, involves me descending into extensive detail.

[368] It may well be that Vice President Lawler’s mental condition

contributed to his decision to participate in the program. But the fact

remains that devastating and highly public damage to his reputation has

been done and cannot be undone. Anyway, there must be a limit to the

familiar “taken out of context” defence. For example, whatever the

context, it is hard to see any doubt about the conclusion that he secretly

recorded telephone conversations with Justice Ross and agreed to their

publication.

[369] Vice President Lawler’s participation in the Four Corners program

demonstrates a standard of behaviour that falls far below what the

Australian public is entitled to expect from persons holding such high

quasi-judicial office. He has publicly manifested hostility to a class of

litigants likely to be much engaged in proceedings before the

Commission. He has destroyed public confidence in his judicial

character and displayed an unfitness for that office. He has sought to

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damage the reputation of the Fair Work Commission without

justification. His secret recording of private telephone conversations

with a sympathetic colleague, and the subsequent publication thereof,

was seriously unlawful, as well as dishonourable.

[370] In my opinion, there is a reasonable basis for both Houses of Parliament

to consider requesting the Governor-General to remove Vice President

Lawler from office on the grounds of proved misbehaviour.

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9. INCAPACITY; TERM OF REFERENCE 5

[371] Initially Dr Pakula thought


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[380] In the light of Dr Pakula’s report, a finding that there is a reasonable

basis for both Houses to consider a request for removal on the ground of

proved incapacity seems inevitable.

Peter Heerey

Dawson Chambers

February 2016

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Documents

Peter Heerey QC Report Into Michael Lawler