Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 (28 June 1990)

HIGH COURT OF AUSTRALIA

LAWS v. AUSTRALIAN BROADCASTING TRIBUNAL [1990] HCA 31; (1990) 170 CLR 70
F.C. 90/029

Administrative Law - Broadcasting

High Court of Australia
Mason C.J.(1), Brennan(1), Deane(2), Gaudron(3) and McHugh(3) JJ.

CATCHWORDS

Administrative Law - Natural justice - Bias - Rule of necessity.

Broadcasting - Australian Broadcasting Tribunal - Powers - Programme standards - Enforcement - Power to prohibit person from broadcasting - Power to impose restrictions - Findings - Opportunity to show cause - Broadcasting Act 1942 (Cth), s. 119.

HEARING

Canberra, 1990, February 7;
Brisbane, June 28. 28:6:1990
APPEAL from the Federal Court of Australia.

DECISION

MASON C.J. AND BRENNAN J. The issue for decision in this appeal is whether, in the unusual circumstances which have arisen, the Australian Broadcasting Tribunal ("the Tribunal") can hold an inquiry under s.17C(1) of the Broadcasting Act 1942 (Cth) ("the Act") into the proposed exercise of its substantive powers in relation to the alleged contravention by the appellant of one of the radio programme standards prescribed by the Tribunal and, if so, whether any or all of its members would be precluded from participating in that inquiry by reason of actual or apprehended bias. In this Court it is not disputed that three of the then members of the Tribunal would be disqualified from so participating, subject to the doctrine of necessity, by reason of their participation in a decision made on 24 November 1987 to the effect that the appellant was in breach of the relevant standard. What is now in contention is whether the filing and maintaining of defences of justification and qualified privilege by the Tribunal in an action for defamation brought by the appellant against the Tribunal and Ms Janette Paramore, the Director of its Programs Division, arising out of an account given by Ms Paramore in a radio broadcast of the decision of 24 November, and the broadcast of that account, have the effect of disqualifying all or any of the members of the Tribunal from participating in such an inquiry on account of actual or apprehended bias, subject again to the operation of the doctrine of necessity.

2. The case arises out of radio broadcasts made in March 1987 by the appellant on his radio talk-back programme on Station 2GB. The broadcasts reached a wide audience throughout Australia over that and other stations. In these broadcasts the appellant criticized certain expenditure by the Commonwealth Government on Aboriginal welfare. The appellant's comments generated complaints from a number of sources, including the Minister for Aboriginal Affairs and the Aboriginal Legal Service. These complaints were made to the respondent Tribunal which is charged with the responsibility of determining the standards to be observed by licensees of commercial radio stations in respect of the broadcasting of programmes (see s.16(1)(d) of the Act). The letter of complaint from the Aboriginal Legal Service mentioned s.119 of the Act.

3. Pursuant to s.16(1)(d) the Tribunal has laid down a number of radio programme standards ("RPS"). One such standard (RPS 3) provides as follows:
"A licensee may not transmit a program which:
(a) is likely to incite or perpetuate hatred against;
or
(b) gratuitously vilifies;
any person or group on the basis of ethnicity, nationality,
race, gender, sexual preference, religion or physical or
mental disability."
4. Section 119 of the Act provides:

"(1) Where a person has -
(a) presented in a live broadcast the whole or a part
of a program; or
(b) passed or selected for broadcasting the whole
or a part of a program (being a program that was
subsequently broadcast),
in respect of which, or in respect of the broadcasting of
which, the program standards were not complied with or this
Act was contravened, the Tribunal may, by direction having
effect either indefinitely or for a period determined by the
Tribunal -
(c) prohibit the person from presenting programs in
live broadcasts or passing or selecting programs
for broadcasting; or
(d) impose restrictions on the presenting by the
person of programs in live broadcasts or on the
passing or selecting by the person of programs for
broadcasting.
(2) The Tribunal shall not give a direction to a
person under sub-section (1) unless it has, by notice in
writing served on the person, called upon the person to show
cause, within a period specified by the Tribunal, why the
direction should not be given.
(3) A person shall not contravene a direction of the
Tribunal under this section."

5. On 8 April 1987 the Tribunal wrote to the manager of 2GB enclosing the letter of complaint from the Minister for Aboriginal Affairs and requesting the tapes of the relevant programmes. On 4 September the Tribunal wrote to Mr Duncan, the General Manager of 2GB, inviting him to meet to discuss the matter. In that letter the Tribunal stated:

"It has formed the view that breaches of that standard
(RPS 3) may have occurred in that the broadcasts were likely
to incite and perpetuate hatred against a group on the basis
of race".

A meeting was then held on 30 September which was attended by three members of the Tribunal (the Chairman, Vice-Chairman and Ms Bailey), Mr Duncan and the Program Director of 2GB. In the course of the meeting criticism was made of the appellant's conduct of the broadcasts and a reference was made to the possibility that the Tribunal, if it found that breaches of RPS 3 had occurred, could exercise its powers under s.119. Subsequently, on 14 October, the Tribunal wrote to 2GB asking for any further material that the station might wish the Tribunal to consider.

6. On 24 November, the Chairman, Vice-Chairman and Ms Bailey issued a document which purported to be a decision of the Tribunal. The document contained the following statements:

"It is the decision of the Tribunal that in broadcasting the
John Laws program on 11, 12, 13, 15, 18, 19, 20 and 23 March
1987, 2GB breached Radio Program Standard 3 on each of those
days.
...
In this case if Mr Laws had tried to balance the extreme
reactions of his callers, rather than inflaming them, if he
had allowed callers with an opposing view to be heard rather
than talking them down, if he had taken care that callers'
views were presented, the Tribunal would have taken a
different view.
The Tribunal considers, based on the broadcast material,
that Mr Laws had researched the subject and that the debate
could have been run in a balanced informational manner which
would have been less likely to inflame extreme reactions in
the audience, or to breach the standards.
The Tribunal not only read transcripts of these broadcasts
but also listened to the tapes supplied by 2GB at its
request. Several factors contributed to the Tribunal's
assessment that the broadcasts were likely to incite or
perpetuate hatred on the basis of race including: the
provocative tone of voice used by Mr Laws, his overbearing
manner, his use of extreme language, his squashing of those
who attempted to put other views and his frequent repetition
of some references.
...
The Tribunal has found that breaches of RPS3 occurred when
2GB broadcast the John Laws programs on 11, 12, 13, 15, 18,
19, 20 and 23 March 1987.
It follows that a breach of s.99(1A) occurred.
Section 99(1A) states:
'a licensee shall supervise the broadcasting of
the licensee's programs in such manner as to
ensure that the program standards are complied
with.'
Having found that the standard has been breached the
Tribunal has several options when determining what weight
should be attached to the breaches and what action should be
taken as a consequence of their occurrence.
...
Having determined that the John Laws programs ... breached
Radio Program Standard 3, the Tribunal Members who made
these decisions will recommend to the Tribunal that it hold
an inquiry to consider whether its powers under s.119 or
s.101, or both, of the Broadcasting and Television Act 1942
should be exercised. The Tribunal cannot exercise its
powers under these sections without holding a public
inquiry.
...
The John Laws programs broadcast by 2GB on 11, 12, 13, 15,
18, 19, 20 and 23 March 1987 breached Radio Program Standard
3, and it follows that a contravention of s.99(1A) of the
Act occurred. It is proposed to recommend to the Tribunal
that it hold an inquiry to consider whether it should
exercise its powers under s.119 or s.101, or both."

A copy of the document, described as "the Tribunal's decisions and reasons", was sent by the General Manager of the Tribunal to Mr Duncan.

7. On 27 November the Tribunal decided to hold an inquiry with a view to deciding whether it should exercise any of its powers under ss.85, 101 and 119 of the Act. Section 85(1) authorizes the Tribunal, during the currency of a licence, to vary or revoke any of the conditions of the licence (other than statutory conditions applicable by virtue of s.129) or impose further conditions. Section 101(1) enables the Tribunal, where a licensee has contravened s.99(1A) in relation to the broadcasting of programmes, or the programmes broadcast by a licensee, to issue in writing to the licensee a reprimand or admonishment. As already mentioned, s.119 confers power on the Tribunal to restrict participation by a person in broadcasts.

8. Because the powers conferred upon the Tribunal by ss.85, 101 and 119 are substantive powers (see s.17A(2)(c), (j) and (n)), the Tribunal was required by s.17C(1) to hold an inquiry into the proposed exercise of these powers. That sub-section provides:

"Where the Tribunal receives an application under this
Act requesting the exercise of any of its substantive
powers, or proposes to exercise any of its substantive
powers otherwise than on such an application, the Tribunal
shall hold an inquiry into the requested or proposed
exercise of the power."

9. On 11 December the Tribunal wrote to the appellant in these terms:

"INQUIRY INTO EXERCISE OF TRIBUNAL POWERS UNDER ANY OR ALL
OF SECTIONS 85, 101 AND 119, OF THE BROADCASTING AND
TELEVISION ACT 1942 AS A RESULT OF BREACHES OF THE STANDARDS
AND THE ACT ARISING FROM BROADCASTS BY JOHN LAWS ON 2GB
This letter is to formally advise you that the Tribunal has
commenced an inquiry into the above matter. The issues for
this inquiry are listed in the attached notice of inquiry.
This Notice of the inquiry will appear in the Gazette, ABTEE
and the major metropolitan newspapers in the near future. A
copy of the Notice is attached for your information."

This was the only communication sent to the appellant by the Tribunal in relation to the relevant broadcasts. Station 2GB kept him informed of major developments in the investigation by the Tribunal, but he did not participate in discussions or correspondence with the Tribunal; nor was he invited by the Tribunal to do so.

10. On 16 December 1987 a notice of the inquiry was published in the Commonwealth Government Gazette pursuant to reg.9 of the Australian Broadcasting Tribunal (Inquiries) Regulations 1986. The notice stated, inter alia:

"AUSTRALIAN BROADCASTING TRIBUNAL
NOTICE OF INQUIRY
EXERCISE OF TRIBUNAL POWERS UNDER ANY OR ALL OF SECTIONS 85,
101 AND 119 OF THE BROADCASTING AND TELEVISION ACT 1942 AS A
RESULT OF BREACHES OF THE STANDARDS AND THE ACT ARISING FROM
BROADCASTS BY JOHN LAWS ON 2GB
The Australian Broadcasting Tribunal is inquiring into
whether to exercise its powers under any or all of sections
85, 101 and 119 of the Broadcasting and Television Act 1942
(the Act) as a result of breaches of the Standards and the
Act arising from broadcasts by John Laws on 2GB. Written
submissions are invited.
The inquiry follows a decision that the John Laws programs
broadcast by 2GB on eight days during the period 11 to
23 March 1987 were in breach of Radio Program Standard
(RPS) 3, and therefore that 2GB was in contravention of
section 99(1A) of the Act.
The issues to be considered in the inquiry are:
1. Whether the Tribunal should exercise its power
under section 85 to impose a condition or
conditions on the licence for 2GB requiring the
adoption of management procedures with relation to
'talkback' shows and the provision of programs
to other licensees in order to prevent further
breaches of section 99(1A);
2. Whether the Tribunal should exercise its power
under section 101 to issue a written reprimand or
admonishment to the licensee of 2GB;
3. If a written reprimand or admonishment is issued
whether the Tribunal should direct the licensee of
2GB to publish the reprimand or admonishment, and
if so, in what form and manner;
4. Whether the Tribunal should exercise its power
under section 119 to issue directions:
(i) prohibiting John Laws from presenting
programs in live broadcasts, or
(ii) imposing restrictions on the presenting by
John Laws of programs in live broadcasts;
5. If the Tribunal issues a direction under
section 119 for what period should it be
determined to have effect."

11. On 2 February 1988 the appellant commenced proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") seeking review of the two decisions made on 24 and 27 November 1987 respectively. The appellant sought review of the decision made on 24 November principally on the ground that, in reaching its decision that the broadcasts had contravened RPS 3 without hearing the appellant, the Tribunal had breached the rules of natural justice. The appellant sought to have the decision made on 27 November quashed on the ground that it was consequential upon the earlier decision and assumed its validity.

12. On 29 April 1988 Ms Paramore was interviewed on 2GB by Ms Jane Singleton with respect to the action taken by the Tribunal against the appellant. What Ms Paramore said in this interview caused the appellant to institute an action for defamation against the Tribunal and Ms Paramore in the Supreme Court of New South Wales. The defences pleaded by the Tribunal in that action became the foundation of a claim by the appellant for an injunction in the proceedings under the ADJR Act restraining the Tribunal from proceeding further with the proposed inquiry.

13. In the interview Ms Paramore repeated the substance of the decision made on 24 November. In describing what the appellant said in the broadcasts, Ms Paramore said:

"(H)e consistently referred to Aboriginal people in
derogatory terms and consistently implied things that
suggested that they were getting preferential treatment and
that they were no-hopers and that if they got off their
backsides they could fix everything up for themselves anyway.
The language used, his response to people with a different
point of view that rang to try and explain that what he was
saying about some of these schemes was not really accurate
was bullying and overbearing and they did not get a fair go,
whereas people who rang to reinforce the sorts of things
that he was putting in his editorial got open slather and
elicited further comments from him which were derogatory."

It is convenient to deal with the legal consequences of Ms Paramore's statements and the issues in the defamation action later in these reasons. For the moment, it is sufficient to say that the appellant contends that Ms Paramore's statements reflect the corporate view of the members of the Tribunal and that, in filing and maintaining its defences to the action, the members of the Tribunal have asserted and continue to assert that the appellant contravened RPS 3.

14. At first instance, before Morling J., counsel for the Tribunal offered to the court two undertakings: first, that the members of the Tribunal to constitute the inquiry would not include any of the three members who signed the document on 24 November; and, secondly, that at the inquiry the appellant would be regarded as entitled to challenge the view that the broadcasts contravened RPS 3.

15. Morling J. held that, as a matter of construction of the Act, the Tribunal had merely undertaken a preliminary investigation, preparatory to a formal inquiry under s.17C of the Act, and that the Tribunal, on hearing from the appellant in that inquiry, might reach a view different from that formed by the three members constituting the Tribunal on 24 November. Accordingly, the decisions on 24 and 27 November were not vitiated as a result of any denial of natural justice. However, his Honour considered that the statements made in the document of 24 November would lead a fair-minded person reasonably to suspect that the three members who made that decision had, by that decision, determined the question whether the appellant had failed to observe RPS 3 in the relevant broadcasts. His Honour said:

"Those statements went much further than suggesting that
there may have been a failure to observe RPS 3. They were
tantamount to a positive finding that such a failure had
been clearly established."

Although this conclusion precluded the three members of the Tribunal from participating in the formal inquiry, it did not entitle the appellant to an order quashing the decision to hold the inquiry, there being other members of the Tribunal who could conduct the inquiry. His Honour concluded that, notwithstanding the first proffered undertaking, the appellant was entitled to the protection of an order of the court.

16. With respect to Ms Paramore's remarks, Morling J. considered that those remarks amounted to no more than a repetition of the views expressed in the document of 24 November. In any event, his Honour was of the opinion that there was no justification for attributing Ms Paramore's views to the members of the Tribunal who would conduct the formal inquiry.

17. In the result, Morling J. ordered that the Tribunal not proceed with the formal inquiry while the Chairman, Vice-Chairman or Ms Bailey were present in his or her capacity as a member of the Tribunal. Otherwise, the application was dismissed. There was no order as to costs.

18. On appeal, the Full Court of the Federal Court (Lockhart, Wilcox and Hill JJ.) held that the Tribunal, by its decision of 27 November in conjunction with the decision of 24 November, if not by the earlier decision alone, had concluded that the broadcasts breached RPS 3 and that this conclusion constituted, as against the appellant, a breach of the rules of natural justice. This was because the appellant was neither heard nor given an opportunity of being heard before the decision was made.

19. The Full Court went on to conclude that, if the inquiry under s.17C was to proceed, the appropriate course was for the Tribunal to start again and resolve to institute the inquiry without any pre-determination against the appellant as to non-compliance with RPS 3 and with issues framed so as to include the question of non-compliance. With respect to the question of bias, the Full Court held that the case of actual bias must fail. Even if the three members who participated in the decision of 24 November could be reasonably suspected of being biased, there were other members who could conduct the inquiry. The Full Court referred to evidence adduced in the appeal relating to changes in the membership of the Tribunal which demonstrated that there were six members of the Tribunal who did not participate in the impugned decision and could participate in the proposed inquiry. In particular, the Vice-Chairman of the Tribunal as at 24 November 1987 had resigned in March 1988.

20. The Full Court rejected the argument that the defences pleaded by the Tribunal in the defamation action placed its members in a position in which they could reasonably be suspected of bias. The argument was that, for the Tribunal - however constituted - to decide the issue of breach of RPS 3 by the appellant would be to determine a matter in which the Tribunal had a material interest. The Full Court held that it was going too far to say that the members of the Tribunal, excluding perhaps those members who participated in the investigation, would reasonably be thought to be unable to bring an unbiased mind to the conduct of the proposed inquiry. Their Honours noted that all that had been suggested was that an adverse verdict in the defamation action would constitute a drain on the Tribunal's funds, possibly affecting the scope of its activities. It was, their Honours thought, "fanciful to apprehend that such a remote and nebulous possibility could affect a Tribunal member in the discharge of his or her obligations at the inquiry". The Full Court went on to say that if, contrary to its conclusion, constructive bias was made out, the doctrine of necessity would apply so as to justify the holding of the proposed inquiry under s.17C.

21. In the result the Full Court upheld the appeal to the extent of declaring that the purported decision of the Tribunal of 24 November 1987 that, in broadcasting the John Laws programme on 11, 12, 13, 15, 18, 19, 20 and 23 March 1987, 2GB breached RPS 3 upon each of those days, was, so far as that purported decision affected the question whether the Tribunal should exercise its substantive powers under s.119(1) in respect of the appellant, of no force and effect. The Court further declared that the decision of the Tribunal to conduct an inquiry into the question whether the Tribunal should exercise its substantive powers under s.119(1) was null and void, in so far as that decision related to issues 4 and 5 set out in the notice of inquiry published in the Government Gazette. Otherwise the appeal was dismissed. There was no order for costs of the appeal.

22. In responding to the appellant's case in support of his appeal to this Court, Mr Nicholas Q.C. for the Tribunal did not dispute that the document of 24 November contained findings that the relevant broadcasts by the appellant infringed RPS 3, that the decision of 27 November proceeded on that footing so that the infringement of RPS 3 was not an issue in the proposed inquiry under s.17C and that the only issues for inquiry related to the taking of such consequential action against the appellant (and 2GB) by the Tribunal in the exercise of its powers as might be appropriate. In view of the contents of the notice of inquiry published in the Commonwealth Government Gazette, it was impossible for the Tribunal to contend otherwise. The notice referred to a decision that the John Laws programmes broadcast by 2GB on the relevant days were in breach of RPS 3 and stated the issues for consideration at the inquiry in such a way as to exclude the issue of infringement of RPS 3.

23. Nor did Mr Nicholas contend that the Act empowered the Tribunal to make such findings as against the appellant in its decisions of 24 and 27 November. Mr Nicholas submitted that the Tribunal was authorized to conduct a preliminary investigation with a view to reaching a conclusion that it would hold a formal inquiry under s.17C. No doubt that submission is correct. Following the broadcasts, either of its own motion or as a result of its receipt of complaints, the Tribunal was entitled to make a preliminary investigation in order to decide whether it should hold a formal inquiry as a pre-condition of the exercise of any of its substantive powers specified in s.17A(2) in respect of the conduct of the licensee and the appellant. But the issue of infringement of RPS 3 was a material issue in that formal inquiry under s.17C. The consequence was that the Chairman, the Vice-Chairman and Ms Bailey went too far in proceeding to make findings of non-compliance with RPS 3. They made the mistake of taking what was a preliminary investigation to the point where it resulted in positive findings of contravention. By participating in the making of such findings they would lead an objective bystander reasonably to apprehend that they had pre-determined the question whether the appellant had failed to comply with RPS 3 in the relevant broadcasts: see Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Vakauta v. Kelly [1989] HCA 44; (1989) 63 ALJR 610; 87 ALR 633. Consequently, they should not participate in the proposed inquiry if there are other members available to constitute the inquiry who are not disqualified by actual or apprehended bias.

24. Section 17(1) provides:

"For the purpose of exercising its powers and functions
under this Act, the Tribunal shall have power to make such
orders, give such directions and do all such other things as
it thinks fit."

Perhaps the sub-section would have authorized publication of a statement recording and explaining a decision to hold an inquiry under s.17C. But the sub-section is not a source of authority for the publication and explanation of findings which the Tribunal was not empowered to make otherwise than through the mechanism of an inquiry under s.17C.

25. Section 119(1) arms the Tribunal with power to give directions to persons who present programmes in live broadcasts and persons who pass or select programmes. The appellant was a person who fell within the first of these two categories. The power is not exercisable unless the preliminary condition stated - non-compliance or contravention as the case may be - is satisfied and the person to be directed is given an opportunity pursuant to s.119(2) to show cause. But for the absence of words conditioning the exercise of the power on the opinion or satisfaction of the Tribunal that there was a non-compliance or contravention, it could not be doubted that an apprehended exercise of the power would attract the rules of natural justice or the duty of fairness, thereby imposing an obligation on the Tribunal to give the person a fair opportunity of presenting his or her case against the giving of a direction, including an answer to the alleged non-compliance or contravention. So much is established by the long line of authority beginning with Cooper v. The Wandsworth Board of Works [1863] EngR 424; (1863) 14 CB(N.S.) 180 (143 ER 414) and including Delta Properties Pty. Ltd. v. Brisbane City Council (1955) 95 CLR 11, at p 18; The Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR 383, at pp 395-396; Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at pp 112-113. Here the giving of a direction in terms of s.119(1)(c) would prohibit a person from engaging in the activity of presenting programmes in live broadcasts or passing or selecting programmes for broadcasting and the giving of a direction in terms of par.(d) would impose restrictions on such activities, in either case adversely affecting the person to whom the direction is given in his or her occupation. In this context the preliminary condition must be read as requiring a finding by the Tribunal that it is satisfied that there has been a relevant non-compliance with programme standards or contravention of the Act and the opportunity to show cause for which s.119(2) provides must be read as extending to the issue of non-compliance or contravention as the case may be as well as to the appropriateness of giving a direction in terms of par.(c) or (d). Indeed, that is the natural construction which the words of s.119(2) invite.

26. As the Tribunal has not sought to cross-appeal against the declarations made by the Full Court in respect of the decisions of 24 and 27 November, it is for the Tribunal to consider afresh whether it should institute an inquiry under s.17C with respect to the alleged non-compliance by the appellant with RPS 3 and the possible exercise of the Tribunal's statutory powers in relation to any such non-compliance as may be found. But there would be no point in the Tribunal giving fresh consideration to the institution of an inquiry if it is unable to conduct such an inquiry by reason of its members being disqualified from participation on account of actual or apprehended bias. It is therefore necessary to examine the appellant's submission that all the members of the Tribunal are disqualified from participating in any future inquiry with respect to the appellant's non-compliance with RPS 3 in relation to the relevant broadcasts. If the submission is upheld, the appellant contends that he is entitled to an order restraining the Tribunal from holding such an inquiry.

27. In order to examine this submission it is necessary to consider the interview given by Ms Paramore. Although the Act did not authorize the publication of the findings of non-compliance by the appellant with RPS 3, it was not disputed that Ms Paramore spoke for the Tribunal when she gave an account of the vitiated decision of 24 November. The Tribunal is constituted by the Act as a body corporate (s.7(1), (2)(a)) and it consists of a Chairman, a Vice-Chairman and at least one other member but not more than six other members: s.8(1). There is nothing to identify the source of Ms Paramore's authority to make the statements which she made in the interview on behalf of the Tribunal. It is very likely that her authority arose from her responsibility as Director of the Programs Division; in other words, it was part of her general responsibility to publish and explain, by way of broadcast, interview and otherwise, decisions made by the Tribunal. The fact that the decision which she sought to report and explain was vitiated, at least so far as it related to the appellant, did not deny to the interview the character of a corporate act performed in purported pursuance of s.17(1). However, though it might be correct to regard the interview as a corporate act, it was not necessarily an act done on behalf of each of the individual members of the corporation. The circumstances are not such as to justify the drawing of an inference that each of the individual members of the Tribunal authorized the interview or approved of its content. At best, from the appellant's viewpoint, it might be inferred that the three members of the Tribunal who made the decision of 24 November so authorized or approved the interview. Accordingly, the interview does not entitle the appellant to wider relief than that granted at first instance by Morling J.

28. It is now necessary to identify the issues in the action for defamation brought by the appellant against the Tribunal and Ms Paramore. In par.5 of his statement of claim the appellant alleged that the statements made by Ms Paramore in the interview with Ms Singleton contained the following imputations defamatory of the appellant:

"The matter complained of in its natural and ordinary
meaning contained the following imputations each of which
were defamatory of the Plaintiff:
(a) That the Plaintiff lacked any capacity to care for
fellow human beings.
(b) That the Plaintiff wrongly manipulated discussion on his
talk-back radio programme so as to broadcast biased and
one-sided material.
(c) The Plaintiff was a person who used, and was prepared
to use, disgustingly racist derogatory words to describe
members of ethnic groups.
(d) That the Plaintiff behaved in a manner which was unfair
to people who called up on his programme.
(e) That the Plaintiff was a bully who engaged in conduct of
a rude and arrogant nature towards callers."

29. The defence of the Tribunal and Ms Paramore denied par.5 of the statement of claim. The defence contained an alternative plea in justification of imputations (b), (d) and (e), but not imputations (a) and (c). Paragraph 7 of the defence also pleaded:

"Further and in the alternative, the defendants say that
insofar as and to the extent that it may be found that the
matter complained of was published of and concerning the
plaintiff and to be defamatory of him either in its natural
and ordinary meaning or as bearing one or more of the
imputations in question (which is denied) each of the
imputations in paragraph 5 of the Statement of Claim:
(a) related to matters of public interest and was published
contextually to the following imputation:
The plaintiff conducted a series of radio
programmes that were designed to lower the
community's views of Aboriginal people.
(which was a matter of substantial truth and also
related to matters of public interest) and by reason
of the substantial truth of the said contextual
imputation, the said imputation (sic) in question did
not further injure the reputation of the plaintiff ..."

The defence also pleaded qualified privilege.

30. The appellant's case is that each and every present member of the Tribunal must be regarded as asserting a belief in the truth or correctness of these defences on the footing that the Tribunal is continuing to maintain the defences in the action. This submission cannot be accepted for two reasons. First, as the defence was not verified on oath and was not required to be so verified, it does not amount to an assertion of belief in the correctness of the facts pleaded. Indeed, traditional principle is that assertions made in pleadings do not amount to admissions. In Boileau v. Rutlin [1848] EngR 661; (1848) 2 Ex 665 (154 ER 657), the Court of Exchequer Chamber held that an averment of the existence of an agreement in a bill in equity in another suit between the same parties could not be received as an admission of the agreement by the party pleading the agreement. Parke B. observed (at pp 680-681 (p 663 of ER)):

"It would seem that (bills in equity), as well as pleadings
at common law, are not to be treated as positive allegations
of the truth of the facts therein, for all purposes, but
only as statements of the case of the party, to be admitted
or denied by the opposite side, and if denied to be proved,
and ultimately submitted for judicial decision."

Later he said (at p 681 (p 663 of ER)):

"(T)he statements of a party in a declaration or plea,
though, for the purposes of the cause, he is bound by those
that are material, and the evidence must be confined to them
upon an issue, ought not, it should seem, to be treated as
confessions of the truth of the facts stated."

31. Some years later, in Buckmaster v. Meiklejohn [1853] EngR 415; (1853) 8 Ex 634 (155 ER 1506), the Court of Exchequer Chamber applied the same principle in the case of common law pleadings. Parke B. pointed out (at p 637 (p 1507 of ER)):

"In point of law, pleadings are not admissions, but are
merely the statement of the case, which the party wishes to
raise for the opinion of the jury."

See also Thorp v. Holdsworth (1876) 3 ChD 637, at p 639; Banque Commerciale v. Akhil Holdings Ltd. [1990] HCA 11; (1990) 64 ALJR 244, at pp 247-248, 254; [1990] HCA 11; 92 ALR 53, at pp 58-59, 59-60, 70.

32. It has been suggested that the traditional principle may be too strict and that in some circumstances an assertion in a pleading should be received as an admission. This was the view of Hodges J. in Austin v. Austin (1905) VLR 564, at pp 566-567, and Maguire J. in Kleeners Pty. Ltd. v. Lee Tim (1961) 78 WN(N.S.W.) 746, at pp 747-748, but in the ultimate analysis both Hodges J. and Maguire J. deferred to authority. More recently, in Singleton v. John Fairfax and Sons Ltd. (1982) 2 NSWLR 38, Hunt J. declined to follow the older cases and concluded (at p 51) that:

"an imputation pleaded in a statement of claim as required
by Pt 67, r 11(2) is admissible evidence by way of admission
against the plaintiff that the matter complained of conveyed
that imputation in fact. The same may well operate against
a defendant in relation to any contextual imputation pleaded
in his defence."

In reaching this conclusion, Hunt J. considered that pleadings should be treated "in the same way as any other form of admission" and that the susceptibility of a pleading to be received as an admission should depend upon whether it was intended to be taken as a sincere or absolute assertion: see p 51.

33. However, in Stohl Aviation v. Electrum Pty. Ltd. (1984) 5 FCR 187 Jenkinson J. (at p 202) declined to follow the approach taken by Hunt J., preferring the traditional rule of exclusion on the ground that a departure from that rule would often lead to unprofitable collateral inquiries concerning the circumstances in which the assertion was included in the pleading.

34. The suggestion that pleadings should be treated in the same way as any other form of admission fails, in our view, to take account of the function and object of pleadings, when they are not required to be verified, in outlining the party's case and defining the issues to be tried. Especially is this so in the case of pleading defences. A defendant is entitled to put a plaintiff to proof of his or her cause of action and to raise alternative matters of defence which may possibly answer the plaintiff's claim, without asserting in an absolute sense the truth or correctness of the particular matters pleaded. Accordingly, we do not regard the defences filed by the Tribunal as constituting admissions on the part of the Tribunal or, for that matter, on the part of its individual members.

35. That conclusion, so it seems to us, disposes of any suggestion of actual bias. There is no other evidence from which an inference of actual bias can be drawn.

36. We are left then with the suggestion that in the circumstances there is a reasonable apprehension of bias because the defences to the action for defamation give rise to a suspicion of prejudgment or because the members of the Tribunal have a conflicting interest in defeating that action. Granted that the existence of apprehended bias is a question of fact, we are not persuaded that the appellant succeeds in making out such a case against members of the Tribunal, other than the Chairman, Vice-Chairman and Ms Bailey, who participated in the decision of 24 November and may be taken to have approved the giving of the interview by Ms Paramore. We are prepared to infer in favour of the appellant that the Tribunal's defences were pleaded in consequence of a decision made by the members of the Tribunal at that time. Decisions of that kind must be made by the members. The Act does not establish any other organ with a capacity or function to make such decisions for the Tribunal; nor does the Act make express provision for a delegation by the members of their decision-making functions. We are also prepared to assume that the issues arising under the pleas in answer to the allegations in par.5 of the statement of claim, especially the contextual imputation the subject of par.7 of the defence, though different from the issues arising in relation to the alleged contravention of RPS 3, are so similar that no distinction should be drawn between them for the purpose of considering the question of apprehended bias.

37. However, we do not consider that the inference drawn in the preceding paragraph, taken in conjunction with the other circumstances which we have described, would lead a fair-minded observer to conclude that the members of the Tribunal, apart from those who participated in the decision of 24 November, would bring other than an unprejudiced and impartial mind to the resolution of the issues which would properly arise in an inquiry to be held under s.17C: see Livesey v. New South Wales Bar Association, at pp 293-294. In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case. In other words, the observer would take account of the circumstances which led to the bringing of the defamation action and the filing of the defences. While it would not be proper to attribute to the fair-minded observer the understanding that a lawyer would have of the capacity of the members of the Tribunal to make an independent decision uninfluenced by previously expressed opinions and conflicting interests (see Vakauta v. Kelly), such an observer must be taken to appreciate that the defences filed by the Tribunal do not amount to assertions of belief or admissions. Consequently, there is no sufficient reason for an observer to conclude that the defences amount to a prejudgment of the issues to be determined in an inquiry under s.17C into the alleged contraventions of RPS 3. He or she would understand that the corporate action of the Tribunal in filing defences to the action brought by the appellant did not involve a judgment of the issues in the action by the individual members of the Tribunal. Moreover, the action is not brought to enforce any personal liability on the part of Tribunal members as individuals. Although the action, if successful, would result in a verdict against the Tribunal in its corporate capacity, it is scarcely likely that government would fail to ensure that the Tribunal had available to it funds to meet the amount of any verdict. In the result, there is no reason for the observer to suppose that any of those members who participate in the inquiry would have any material interest, direct or indirect, which would induce him or her to bring other than an impartial and unprejudiced mind to bear on the resolution of the relevant issues.

38. It is not in dispute that, if the only members who are disqualified from participating in an inquiry under s.17C are those who participated in the decision of 24 November, there will be no difficulty in constituting a Tribunal for that inquiry from its remaining members. The judgment of the Full Court of the Federal Court indicates that there have been changes in the composition of the Tribunal since 24 November so that there is no foundation for the claim that the Tribunal should be restrained from holding an inquiry.

39. The second reason for rejecting the appellant's case is that, in any event, even if, contrary to the view which we have expressed, there be a case for holding that a reasonable apprehension of bias attaches to all the members of the Tribunal, the operation of the rule of necessity would ensure that the Tribunal is not disabled from performing its statutory functions. The rule of necessity permits a member of a court who has some interest in the subject-matter of the litigation to sit in a case when no judge without such an interest is available to sit: Dimes v. Proprietors of Grand Junction Canal [1852] EngR 789; (1852) 3 HLC 759, at pp 787-788 [1852] EngR 789; (10 ER 301, at p 313). The existence of the principle has been recognized in this Court by Isaacs J. in Dickason v. Edwards [1910] HCA 7; (1910) 10 CLR 243, at p 259, and by Brennan and Deane JJ. in Builders' Registration Board of Queensland v. Rauber (1983) 57 ALJR 376, at pp 385-386, 392. In the latter case, Brennan J. had no hesitation in holding that the principle applied to a statutory tribunal as well as to a court: see pp 385-386. And Deane J. acknowledged that this might be so: see p 392. The conclusion reached by Brennan J. upon this point conforms to principle and to received opinion in other common law jurisdictions: see the citations in Rauber, at pp 385-386, 392. The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute: Twist v. Randwick Municipal Council, at pp 109-110, 112 et seq., 118-119; Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396, at pp 401, 442; FAI. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342, at pp 348-349, 362-363.

40. In the result our conclusion is that the appellant is not entitled to an order restraining the Tribunal from holding an inquiry under s.17C of the kind now under consideration. The appellant is, however, entitled to an order restraining the Tribunal from holding such an inquiry while the Chairman or Ms Bailey is present in her capacity as a member of the Tribunal. (No order should be made in relation to the former Vice-Chairman, whose resignation was proved in evidence before the Full Court of the Federal Court.) An order in similar terms was made by Morling J., though it proceeded on the footing that a valid decision to hold the inquiry had been made, and was therefore not expressed in general terms but referred only to the particular inquiry to which that decision related. That order was not disturbed by the Full Court of the Federal Court, notwithstanding that the Court held that the decision to hold the inquiry was null and void. We would vary the order so as to restrain the Tribunal from holding such an inquiry while the Chairman or Ms Bailey is present in her capacity as a member of the Tribunal. Otherwise we would dismiss the appeal with costs.

DEANE J. The detailed facts and the relevant legislative provisions involved in this appeal are set out in the joint judgment of Mason C.J. and Brennan J. Except to the extent necessary for discussion, I shall seek to avoid repetition of them. The respondent Australian Broadcasting Tribunal ("the Tribunal") now accepts that the "decision" of 24 November 1987 that eight specified "John Laws programs" breached "Radio Program Standard 3" ("RPS3") and the decision of 27 November 1987 to hold an inquiry to determine what steps should be taken on the basis of that earlier decision were both vitiated by a failure to accord procedural fairness to the appellant. The outstanding issue relates to the validity of a fresh inquiry which the Tribunal proposes to hold under s.17C of the Broadcasting Act 1942 (Cth) ("the Act"). The primary issue in that proposed inquiry would be whether the eight programmes did contravene RPS3.

2. Among the obvious examples of circumstances in which an administrative body entrusted with the exercise of governmental powers is under a prima facie duty to observe the requirements of procedural fairness is a case in which the freedom of an individual to earn his livelihood in the manner of his choice is at stake. The present is such a case in that a valid finding by the Tribunal that one or more of the relevant radio programmes, which were presented by the appellant in live broadcast, breached RPS3 would enliven a power in the Tribunal, under s.119 of the Act, to prohibit or restrict the presentation by the appellant of programmes in live broadcasts "either indefinitely or for a period determined by the Tribunal". That being so, the Tribunal is prima facie obliged to observe the requirements of procedural fairness in relation to the conduct of the fresh inquiry which it now proposes to hold under s.17C of the Act. Indeed, as I followed the argument, it is not disputed that that is so.

3. It has long been settled that the content of the requirements of procedural fairness may vary according to the particular circumstances of a case, including the nature and general functions of the entity required to observe them and the relationship between that entity and the person to whom procedural fairness must be accorded. Plainly, such variations may occur in the content of the requirement that a tribunal required to observe procedural fairness be not tainted by either the actuality or the appearance of disqualifying bias. Thus, acquaintanceship with or preconceived views about a party of a kind which would create the appearance of disqualifying bias in a judge exercising the judicial power of a court of law may be permissible and unobjectionable in a statutory body which, while required to accord procedural fairness in the discharge of a particular function, is entrusted with other functions which necessitate a continuing relationship with those engaged in a particular industry.

4. Examination of the provisions of Pt II of the Act discloses that the Tribunal is an administrative body entrusted with the general supervision of television and radio broadcasting in Australia. It "is a body corporate" which consists "of a Chairman, a Vice-Chairman and at least one other member but not more than 6 other members" (ss.7(2)(a), 8(1)). At a meeting, a quorum is constituted by a majority of the members currently holding office (s.15B(3)). The Chairman may, "for the purposes of an inquiry", constitute "a Division of the Tribunal" consisting of a lesser number of members (see s.15C). Section 16(1) of the Act provides that the Tribunal's "functions" are, inter alia: "(a) to grant, renew, suspend, revoke and accept the surrender of licences;" and, "(d) ... to determine the standards to be observed by licensees in respect of the broadcasting of programs and in respect of programs to be broadcast". In the performance of those functions, it is unavoidable that the Tribunal and its members will have an ongoing relationship with licensees under the Act and will also have recurrent contact and dealings with at least some individuals engaged in television or radio broadcasting. Inevitably, all or some of the members of the Tribunal will, over a period of time, form general views about such licensees and about the character, responsibility and standards of at least some individuals engaged in the broadcasting of television or radio programmes. The fact that some or all members of the Tribunal entertain such general views about a licensee or an individual involved in broadcasting would not of itself constitute disqualifying bias for the purposes of a s.17C inquiry concerning the conduct of particular broadcasting activities by that licensee or individual. That follows, in my view, from the need to adjust the content of the requirements of procedural fairness to what is appropriate to the circumstances of the particular case. Even if the requirements of procedural fairness were not to be so adjusted, it would nonetheless be possible to discern in the Act an overriding statutory intent that preconceived general views of a type which must almost inevitably result from the performance by members of the Tribunal of functions under the Act should not, of themselves, constitute disqualifying bias.

5. On the other hand, such preconceived general views about a licensee or an employee of a licensee must be distinguished from prejudgment of the very issue involved in an inquiry under the Act. Subject to the question of the operation of the rule or doctrine of necessity, there is nothing in the overall provisions of the Act or in the circumstances in which the Tribunal must function which would warrant the conclusion that prejudgment of the actual issue involved in an inquiry does not constitute disqualifying bias. That being so, the actuality or the appearance of prejudgment of the primary issue involved in the Tribunal's proposed fresh inquiry is inconsistent with the requirements of procedural fairness which the Tribunal must observe. If the Tribunal as a whole is affected by the actuality or the appearance of such prejudgment, the Tribunal will, subject to the possible operation of the doctrine of necessity, be precluded from embarking upon that proposed inquiry. If the Tribunal as a whole is not so affected but some of its members are, those members will, subject again to the possible operation of the rule of necessity, be disqualified.

6. In most cases where a statutory tribunal can be validly constituted by some only of its members, the actuality or the appearance of disqualifying bias on the part of a particular member or particular members will affect those members only and will not taint the tribunal as a whole. If, for example, the actuality or appearance of bias on the part of a particular member or particular members results from a relationship or activities unconnected with membership of the relevant tribunal, there is not, without more, any reason in fairness, principle or common sense why the other members of that tribunal or the tribunal itself should be affected or disqualified. Even where the actuality or the appearance of bias on the part of a particular member or particular members has resulted from the discharge of the relevant tribunal's functions, it will ordinarily be possible to say that neither the parties nor a fair-minded, informed lay observer would entertain a reasonable apprehension that the tribunal as a whole was affected by the disqualifying bias of the particular member or members. The circumstances of a particular case may, however, be such as to give rise to a reasonable apprehension that the relevant tribunal as an institution is affected by disqualifying bias. One possible example of such a case is where the identity of the members of a tribunal who are involved in prejudgment of issues is effectively shielded by the institutional facade. Another possible example is where the circumstances are such as to give rise to a reasonable apprehension that all members of the tribunal are affected. Ultimately, the central question in the present appeal is whether the Tribunal, as an entity, is itself affected by the actuality or appearance of disqualifying bias in the conduct of the proposed inquiry.
AN APPEARANCE OF BIAS

7. Three identified members of the Tribunal's Program Content Committee, sitting as if they were a Division of the Tribunal constituted under s.15C, have already "investigated" and prejudged the primary issue into which the Tribunal now proposes to inquire. As the Full Court of the Federal Court pointed out, it is difficult to ascertain the precise basis upon which the three members purported to act since such a Division under s.15C can only be appointed "for the purposes of an inquiry" and no formal decision to hold an inquiry would seem to have been made prior to 27 November 1987. Be that as it may, the three members found, in their vitiated "decision" of 24 November 1987, that the relevant "John Laws programs" breached RPS3 with the consequence that "a contravention of s.99(1A) ... occurred". If that were all that was involved in past events, there would obviously be much to be said for the view that the Tribunal itself, as the corporate entity, can be distinguished from the three members who reached that earlier vitiated decision. It is not, however, necessary to pursue that matter for the purposes of this appeal. The reason why that is so is that the Tribunal, as a corporate entity, has been involved in other activities which would be likely to cause a fair-minded and informed lay observer to entertain a reasonable apprehension of institutional prejudgment of the primary issue involved in the proposed inquiry. I turn to explain why that is so.

8. In their "decision" of 24 November 1987, the three members clearly distinguished between themselves as a Division or Committee of the Tribunal and the Tribunal as a whole. In particular, they stated that "the Tribunal Members who made these decisions will recommend to the Tribunal that it hold an inquiry to consider whether its powers under s.119 or s.101, or both, (of the Act) should be exercised" (emphasis added). On 27 November 1987, the Tribunal itself, as distinct from the Division or Committee constituted by the three members, acted upon that recommendation. Accepting the three members' conclusion that the eight programmes breached RPS3 and thereby contravened s.99(1A), the Tribunal resolved to hold the recommended inquiry. The Full Federal Court held, and it is now common ground that, that decision of "the full Tribunal, or at least a quorum of its members," was itself vitiated by reason of the failure to accord procedural fairness to the appellant. The number and identity of the members (at least a "majority" of the total membership: s.15B(3)) involved in the making of that vitiated decision remain concealed behind the Tribunal's institutional facade. On 11 December 1987, the Tribunal had its first direct contact with the appellant about the programmes. It advised him of the proposed inquiry. On 2 February 1988, the appellant instituted the present proceedings.

9. On 29 April 1988, that is, more than two months after the commencement of these proceedings, a senior employee of the Tribunal, Ms. Paramore, in an interview broadcast by a Sydney radio station, made strongly-worded comments about the appellant's conduct of the eight radio programmes. It has not been suggested that Ms. Paramore was acting outside her ordinary functions as the Director of the Programs Division of the Tribunal when she made those statements. Nor, for that matter, is there anything before the Court to suggest either that Ms. Paramore acted without the actual authority of the Tribunal itself or that the Tribunal or any member of the Tribunal has done anything at all to record or indicate disagreement with, or disassociation from, either the making or the content of her statements. To the contrary, the Tribunal has, on the appeal to this Court, argued that Ms. Paramore's actions represented an exercise by the Tribunal of its statutory functions under s.17(1) of the Act. That sub-section empowers "the Tribunal" to "do all such other things as it thinks fit" for "the purpose of exercising its powers and functions under (the) Act". The making of the broadcast by Ms. Paramore was, it was submitted, "justified" as "an exercise of (a) statutory power by the Tribunal" in that it is "incidental to ... the exercise and carrying out of its functions" that the Tribunal "be empowered to publicize what it is doing". Any suggestion that Ms. Paramore "did not go on air as a representative of the entity, the Tribunal" was expressly disavowed. In these circumstances, any fair-minded lay observer would be entitled to conclude that Ms. Paramore's comments are properly to be seen as having been made by the Tribunal itself as a corporate or institutional entity.

10. Examination of the statements made by Ms. Paramore discloses that their effect was unmistakably to assert that the eight programmes in question breached the requirements of RPS3. The terms used to describe the appellant's conduct in presenting those programmes (e.g. "bullying"; "overbearing") were judgmental and strong. Those public statements plainly should not have been made by the Tribunal at a time when the decision of the three members and the consequent decision of the Tribunal itself were under challenge in the Federal Court on the ground that they were vitiated by a denial of procedural fairness. In circumstances where it is now common ground that those earlier decisions were so vitiated, the statements certainly cannot be justified by reference to a proper performance of the Tribunal's statutory functions under s.17(1) or under any other provision of the Act. Following upon them, the appellant instituted defamation proceedings in the Supreme Court of New South Wales against the Tribunal as a corporate entity. The Tribunal filed a defence containing a number of grounds, including justification. The effect of those defences is that the Tribunal, as a corporate entity, has asserted, and presumably will seek to prove as a basis for avoiding liability, that the appellant is guilty of the alleged contraventions of RPS3 into which it proposes to hold an inquiry. On the hearing of the present proceedings in the Federal Court, the Tribunal did not call evidence to establish whether, or the extent to which, individual members of the Tribunal had authorized, ratified or been involved in the Tribunal's public assertion (through Ms. Paramore) of the appellant's guilt of the contraventions of RPS3 or in the Tribunal's defence of the defamation proceedings. Those matters, like the composition of the Tribunal when it made its vitiated decision of 27 November 1987, have been kept concealed beyond the Tribunal's institutional or corporate veil.

11. In these circumstances, it appears to me that the question whether the Tribunal, as a whole, is affected by an appearance of bias in relation to its proposed inquiry must be answered in the affirmative. The standard by reference to which that question must be answered is that of the reasonable and fair-minded lay observer. It must be presumed that such an observer has knowledge of the material objective facts. At the cost of some repetition, it is desirable to recapitulate those facts. They are: (i) a Division or Committee of the Tribunal, constituted by three of its members including the Chairman and Vice-Chairman, has already, in a published "decision", prejudged the primary issue in the proposed inquiry in a way that is unfavourable to the appellant; (ii) the full Tribunal, presumably constituted by at least a majority of its total membership, accepted and acted upon that prejudgment of the primary issue when it decided to hold an inquiry about whether, on the basis of the earlier "decision", it should "exercise its powers". As has been said, it is now common ground that, in the words of the Tribunal's written submissions in this Court, that "decision" of the Tribunal was "based upon" the earlier "decision" and was consequently "null and void"; (iii) even after the appellant had instituted legal proceedings to challenge the validity of those "decisions", a senior officer of the Tribunal publicly made statements in judgmental terms to the effect that the earlier decisions were justified and that the appellant was in fact guilty of the breaches of RPS3; (iv) the Tribunal, in this Court, has asserted that the making of those public statements was "justified" as an exercise of the Tribunal's own "statutory powers" and has conceded that Ms. Paramore was acting as the representative "of the entity the Tribunal" when she made them; (v) the Tribunal as a corporate entity is now actively seeking to justify Ms. Paramore's statements and to establish the appellant's guilt of the relevant breaches of RPS3 in proceedings in the Supreme Court arising from those statements; and, (vi) on the hearing in the Federal Court, the Tribunal did not disclose what lay beyond its institutional facade. In particular, it called no evidence to establish that some, and if so which, of its then members were not involved in any of the above matters. In all these circumstances, an informed and fair-minded lay observer would, in my view, inevitably entertain a reasonable apprehension that the Tribunal as a whole is affected by disqualifying bias in the sense that there would be a real likelihood that some or all of the members involved in any fresh inquiry under s.17C would not bring an impartial and unprejudiced mind to the determination of the question whether the eight programmes contravened RPS3.
THE RULE OF NECESSITY

12. I agree with Mason C.J. and Brennan J. that the rule of necessity is, in an appropriate case, applicable to a statutory administrative tribunal, as it is to a court, to prevent a failure of justice or a frustration of statutory provisions. That rule operates to qualify the effect of what would otherwise be actual or ostensible disqualifying bias so as to enable the discharge of public functions in circumstances where, but for its operation, the discharge of those functions would be frustrated with consequent public or private detriment. There are, however, two prima facie qualifications of the rule. First, the rule will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice. Second, when the rule does apply, it applies only to the extent that necessity justifies.

13. The question whether the application of the rule of necessity would involve positive and substantial injustice must be answered by reference to the circumstances of the particular case. In a case where the appearance or actuality of disqualifying bias is the result of conflict of interest or extrinsic knowledge, the relevant circumstances will include the manner in which the conflict of interest arose or the extrinsic knowledge was obtained (see, generally, Tracey, "Disqualified Adjudicators: The Doctrine of Necessity in Public Law", Public Law, (1982), 628, at pp 634ff.). In particular, the circumstance that, in such a case, the conflict of interest or extrinsic knowledge arose from or was caused by the deliberate act of the party who would otherwise be entitled to complain of bias may dictate a negative answer to the question whether the application of the rule would involve positive and substantial injustice to that party. Conversely, the fact that such a conflict of interest or extrinsic knowledge arose from or was caused by some voluntary collateral act of the adjudicator may constitute a powerful consideration favouring an affirmative answer to that question. In the present case, any conflict of interest which might be seen as arising from the defamation proceedings can, to some extent, be said to have been caused by the appellant who instituted those proceedings. There has, however, been no suggestion that the defamation proceedings were instituted for the purpose of creating a conflict of interest or are other than a genuine reaction to Ms. Paramore's published statements which, as has been said, were made on behalf of the Tribunal at a time when they should never have been made. On the other hand, any such conflict of interest can, to some extent, be said to have been intensified by the action of the Tribunal in raising and maintaining the defence of justification. There is, however, no suggestion that any individual member has acted otherwise than in accordance with what she or he saw as the proper discharge of her or his functions as a member of the Tribunal or that any member of the Tribunal has voluntarily assumed a role inconsistent with participation in the discharge of the Tribunal's functions. In all the circumstances, I do not think that the case is one in which the answer to the question whether the application of the rule of necessity would cause positive and substantial injustice is significantly influenced by the apportionment of responsibility or blame for the existence of the appearance or actuality of disqualifying bias.

14. The material before the Court indicates that there have been substantial changes in the composition of the Tribunal since the vitiated "decisions" of 24 and 27 November 1987. The Court was informed in the course of argument that, in the context of those subsequent changes, it would be possible to constitute a Division of the Tribunal which did not include any members who had been personally involved in the proceedings leading to the decisions of 24 and 27 November 1987, the authorization or ratification of Ms. Paramore's statements on 2GB or any decision of the Tribunal relating to the raising or maintenance of the defences filed in the defamation proceedings. That being so, the application of the rule of necessity, if it be limited to the extent that necessity requires, would extend only to permit the proposed inquiry to be conducted by a Division constituted by such members and the appointment of such a Division by the Chairman pursuant to s.15C. On that basis, the application of the rule to permit an inquiry by a Division so constituted and to permit consequent action by the Tribunal on the basis of the Division's findings would not, in my view, involve substantial injustice. That being so, the rule of necessity is, in the circumstances, applicable to that limited extent.

15. Accordingly, I would allow the appeal with costs and substitute for the orders made by the Full Court of the Federal Court orders which would have the effect of ensuring that any Division of the Tribunal constituted for the purposes of an inquiry into the eight programmes be composed only of members who have not been personally involved in any of the above-mentioned matters. Since my conclusion in that regard is a dissenting one, it is unnecessary that I consider whether any further provision should be made in the order (e.g. limited liberty to apply for a supplementary order) to ensure that subsequent involvement of a particular member in the defamation proceedings does not create a situation where continuation of the inquiry even by a Tribunal so constituted would go beyond what could be justified by reference to the rule of necessity.

GAUDRON AND McHUGH JJ. Subject to what appears below, we agree with the reasons for judgment of Mason C.J. and Brennan J.

2. An assertion made in a pleading does not constitute an admission by the party filing the pleading: Buckmaster v. Meiklejohn [1853] EngR 415; (1853) 8 Ex 634, at p 637 [1853] EngR 415; (155 ER 1506, at p 1507); Stohl Aviation v. Electrum Pty. Ltd. (1984) 5 FCR 187, at p 201. Nevertheless, in our opinion, a fair-minded observer would infer that, in filing the defences of justification and contextual justification, the members of the Tribunal had formed the opinion that, on the evidence known to them, the assertions in those defences were true. If it is proper to attribute to the fair-minded observer knowledge that pleadings do not amount to admissions, it must also be proper to attribute to that observer knowledge that the filing of a defence in a defamation action may be taken into consideration on the issue of malice and as improperly aggravating the injury done to the plaintiff "if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable": Triggell v. Pheeney [1951] HCA 23; (1951) 82 CLR 497, at p 514. On that hypothesis, the fair-minded observer, not wishing to attribute a lack of bona fides or improper or unjustifiable conduct to the Tribunal, would inevitably conclude that its members believed that, on the evidence known to them, the Tribunal would be able to establish that the imputations made against the appellant in the broadcast were true. Moreover, the failure of the members of the Tribunal to give evidence in rebuttal of the inference which arises from the filing of the defences of justification and contextual justification strengthens the case for concluding that they held the belief that the evidence, known to them, would establish that the imputations against the appellant were true.

3. Since the issues which arise under the defences of justification and contextual justification are so similar to the issues which arise in relation to alleged breaches of RPS 3, we think that a fair-minded observer would also conclude that, at the time when the defences were filed, the members of the Tribunal, if asked to decide the issues arising under the s.17C inquiry, would probably have made findings adverse to the appellant.

4. This does not mean, however, that the appellant is entitled to an order restraining the Tribunal from holding an inquiry under s.17C. It appears from evidence before the Full Court that membership of the Tribunal has changed since the defences were filed in the defamation action on 3 August 1988. At the date of the hearing before the Full Court one of the three Tribunal members who participated in the decision of 24 November 1987 had resigned from the Tribunal. Another two members, who were not involved in that decision, had also left the Tribunal. Since 24 November 1987 five new members have been appointed, two of them after the defences in the defamation action were filed. Thus, at the date of the Full Court hearing, the Tribunal consisted of eight members. Only two of those members were involved in the 24 November 1987 decision, one was a member at the time of that decision but did not participate in the making of the decision, three were appointed after the decision but prior to the filing of the defences and two were appointed after the filing of the defences. There is no basis for concluding that persons who were appointed to the Tribunal after the filing of the defences have formed any opinions concerning the issues in the inquiry. Consequently, it may be possible to conduct the inquiry with members appointed since the defences to the defamation action were filed. But even if it is not physically or practically possible to conduct the inquiry with members appointed since the defences were filed, it still does not follow that the appellant is entitled to an order restraining the Tribunal from holding an inquiry.

5. At least six members of the Tribunal did not participate in the decision of 24 November 1987, and at least two of them were appointed after the defences to the defamation action were filed. Even if four of those six members were parties to the filing of the defences, the rules of natural justice would only require their disqualification if a reasonable bystander would entertain a reasonable fear that they were incapable of bringing fair and unprejudiced minds to the inquiry: Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248, at p 262; Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294. A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry: Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100, at p 116; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, at pp 554, 555; Re Shaw; Ex parte Shaw (1980) 55 ALJR 12, at pp 14, 15; 32 ALR 47, at pp 50-51, 53. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. Thus, in Ex parte Angliss Group, the mere fact that the statement of reasons for a previous decision gave rise to the conclusion that members of the Conciliation and Arbitration Commission tended to favour the adoption of a principle of equal pay for both sexes as soon as it was economically and industrially practicable to do so was not a ground for disqualifying them from sitting on an application for an equalisation of rates of pay for male and female employees brought in reliance upon their reasons. This Court rejected (at p 554) the notion that a fair and unprejudiced mind was "necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it". In Re Shaw, the transcript showed that a judge of the Family Court of Australia had expressed opinions adverse to the case for the husband before his counsel had opened his case. Nevertheless, Gibbs A.C.J., with whose judgment Stephen J. and Wilson J. agreed, said (at p 14; p 51 of ALR) that the evidence did not justify "a conclusion that the views which the learned judge expressed, although strong, were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind".

6. In the present case, the most that can be said against those members of the Tribunal who were parties to the filing of the defamation defences is that they believed that, upon the evidence then known to them, the assertions in the defences were true and that on that evidence they would probably have decided the s.17C issues adversely to the appellant. But to attribute that belief and that decision to them does not give rise to a reasonable fear that they would not fairly consider any evidence or arguments presented by the appellant at the s.17C inquiry or that they would not be prepared to change their views about the issues. When the defamation proceedings against the Tribunal were commenced, the members of the Tribunal were required to file the Tribunal's defence on the evidence that they then had in their possession and without the benefit of evidence or argument from the appellant. When all the evidence is heard and the case argued, it may become apparent to them that the defences which the Tribunal filed cannot succeed. However, there is no suggestion that the filing of the defences was itself an abuse of process or the product of prejudice. To the contrary, the hypothesis is that the members of the Tribunal believed that the assertions in the defences were true. But neither logic nor the evidence makes it reasonable to fear that, because of that belief, the members of the Tribunal will not decide the case impartially when they hear the evidence and arguments for the appellant at the s.17C inquiry. No doubt the Tribunal could have sought a stay of the defamation proceedings until the inquiry was concluded. Whether the application would have been successful is highly debatable: cf. Rochfort v. John Fairfax and Sons Ltd. (1972) 1 NSWLR 16, at p 19. In any event, the failure to apply for a stay does not give rise to a reasonable fear that the members of the Tribunal would not be moved by any evidence or argument presented by the appellant. Neither the filing of the defences nor the failure to apply for a stay nor both matters in combination gives rise to any reasonable fear or suspicion that the members of the Tribunal will not determine the s.17C inquiry with fair and unprejudiced minds.

7. The present case is not comparable to Livesey where two judges of the New South Wales Court of Appeal had made findings in earlier litigation on factual issues which arose in the proceedings before them. In that case there were reasonable grounds for fearing that the members of the Court of Appeal would not change their earlier findings which had been made after hearing evidence and argument. Nor is the present case comparable to Reg. v. Watson where the majority of this Court held that a reasonable observer would have been justified in thinking that the judge had formed a "settled view" that neither party was worthy of credit even though the judge "had not seen either party in the witness box, and the matters which led him to hold that he could not believe them had not been fully examined either in evidence or in argument" (at p 264).

8. Accordingly, in our opinion, there is no ground for holding that those members of the Tribunal, other than those who participated in the decision of 24 November 1987, are disqualified from conducting the inquiry under s.17C. Since the respondent accepts that the members of the Tribunal who will conduct the inquiry can not include the three members who signed the document of 24 November, it is unnecessary to decide whether those members could reasonably be suspected of bias.

9. Our conclusion that no reasonable bystander would reasonably fear that the members of the Tribunal would bring unfair or prejudiced minds to the inquiry makes it unnecessary for us to determine whether the doctrine of necessity applies to the case of a person who is reasonably suspected of prejudging an issue which arises for decision by him or her. Whatever the precise scope of the doctrine of necessity in the natural justice context, it seems contrary to all principles of fairness that, on the ground of necessity, a person should have to submit to a decision made by a person who has already prejudged the issue. Likewise, there seems much to be said for the view that, in the absence of a contrary statutory intention, the ground of necessity should not require a person to submit to a decision made or to be made by a person who is reasonably believed to have prejudged the issue.

10. We agree with the orders proposed by the Chief Justice and Brennan J.

ORDER

Appeal allowed in part.

Vary the orders of the Full Court of the Federal Court by ordering that the first order of Morling J. be set aside and that in lieu thereof it be ordered that the respondent not proceed with the holding of an inquiry of the kind referred to in its letter of 11 December 1987 to the appellant while either the Chairman or Ms Bailey is present in her capacity as a member of the respondent.

The appellant to pay the respondent's costs of the appeal.