Judge recused from nurse’s appeal over letter to Industrial Relations Minister

A judge has recused himself from hearing an appeal in the Industrial Court of Queensland following revelations about a letter he sent to Industrial Relations Minister Grace Grace.

Justice Peter Davis. Picture: Liam Kidston

Justice Peter Davis has recused himself from hearing an appeal in the Industrial Court of Queensland following an application by the head of a purported nurses association.

Nurses Professional Association of Queensland president Margaret Gilbert is appealing the dismissal of her claim that she was the subject of adverse action due to her involvement with NPAQ.

In November last year Justice Davis, president of the Industrial Court of Queensland, heard the appeal which centres on whether NPAQ is a trade union or industrial association.

If it is neither, then action taken against Ms Gilbert as a result of her activities with NPAQ could not constitute adverse action.

Before Justice Davis delivered judgment Ms Gilbert filed an application that he recuse himself due to his Australian Labor Party membership prior to his appointment to the Supreme Court in October 2017 and a letter he sent to Industrial Relations Minister Grace Grace in June this year.

Nurses Professional Association of Queensland president Margaret Gilbert. Picture: Annette Dew

Justice Davis’ letter related to the Industrial Relations Act and a claim that non-lawyers charge fees to represent people in the industrial court and commission.

In the letter Justice Davis cited one case before the Industrial Court where an agent was representing a person appealing a decision from the commission.

“The party’s interests were not being advanced by this gentleman who I assume was being paid,” he said.

“He simply did not have the skills to advocate for the applicant.

“The central problem is that there is a group of professional advocates who are clearly providing services of a legal nature who are completely unregulated.”

The letter said these matters were arising regularly and suggested an “urgent need” for some regulation of those who are not lawyers charging fees to represent people in the commission and court.

In his decision Justice Davis said the Queensland Law Society sent a similar letter to a parliamentary committee.

In a decision delivered on Friday, Justice Davis said he thought it appropriate to send the letter given his role as president.

Ms Gilbert also raised Justice Davis’ prior ALP membership and state Labor MP Peter Russo thanking him for his support in the 2015 election.

Justice Davis said he assisted Mr Russo in fundraising for the 2015 election and supported booth workers on election day.

Before being sworn as a judge he resigned his ALP membership and said he had not been involved in any political activity since becoming a judge.

“ No reasonable, fair-minded person would think that I would decide the appeal otherwise than on its merits based on my previous political affiliations and activity,” he said.

He found no reasonable apprehension of bias could arise as a result of his former political activities or affiliations.

However in relation to his letter to Ms Grace, which Ms Gilbert claimed raised an apprehension of bias, Justice Davis said parliamentary privilege prevented him from making a finding.

“ That leads to a very unsatisfactory outcome,” he said.

“ It follows then that any decision is potentially, in the public eyes, tainted by unresolved allegations of an apprehension of bias, no matter how weak those allegations obviously are.

“In the circumstances, it is appropriate that I do not decide the appeal.”