Disqualification of Judges and Pre-Judicial Advice
| Author | Stephen McDonald,Gabrielle Appleby |
| DOI | 10.22145/flr.43.2.2 |
| Date | 01 June 2015 |
| Published date | 01 June 2015 |
| Subject Matter | Article |
DISQUALIFICATION OF JUDGES
AND PRE-JUDICIAL ADVICE
Gabrielle Appleby
∗
and Stephen McDonald
∗∗
ABSTRACT
This article explores the circumstances in which a judicial officer may be required to
recuse himself or herself on the basis of an opinion provided in the course of p ractice as
a legal practitioner, prior to appointment to judicia l officer, particularly where that
opinion was on a matter of law only (including the constitutional validity of legislation).
We suggest that questions co ncerning disqualification of judicial officers in such
circumstances might be better approached by considering broader concepts of fairness,
in addition to asking whet her the provision of the p re-judicial opinion gives rise to
considerations of apprehended bias. We also explore possible developments of the law
to avoid the undesirable situation where the disqualification of a particular judicial
officer ma y depend upon whether one party to the litigation chooses to disc lose the
existence or the content of advice that it has received.
I INTRODUCTION
In Australia, judges are appointed from the legal profession. Accordingly, before their
appointment most judges will have had a p ractice in which they will have provided
opinions on various legal questions. Given th is reality, it is perhaps surprising that little
judicial or academic attention has been paid to the question of whether, or in what
circumstances, advice provided on questions of law by judges prior to their appointment
('pre-judicial advice') will disqualify them from sitting in a ma tter in which that question
arises for decision. Recent decisions of Justice Stephen Gageler of the High Court not to
sit in a number of cases have demonstrated that the current law on apprehended bias
and waiver is difficult to apply to the particular issues that pre -judicial advice raises.
Where pre-judicial advice has been provided only in respect of a matter of law — for
example, where the advice has considered the constitutional validity of legisl ation
subsequently in question before the court — questions remain as to whether and when
the judge, or the party to whom t he advice was provided, c an and should disclose its
existence, whether a judge who pro vided such advice should disqualif y himself or
∗ Associate Professor, Faculty of Law, University of New South Wales, Co-Director of The
Judiciary Project, Gilbert + Tobin Centre of Public Law. We would like to thank Rosalind
Dixon, Justice James Edelman, Belinda Baker, Leighton McDonald, Anna Olijnyk, Adam
Webster and Sir Anthony Mason for their comments on earlier drafts of this article.
∗∗ Barrister, Hanson Chambers. Adjunct Senior Lecturer, University of Adelaide.
202 Federal Law Review Volume 43
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herself and, if so, on what basis.
Often, questions of whethe r the provision of pre-judic ial advice disqualifies a judge
from sitting on a case will need to be determined expeditiously. Moreover, the effect of
pre-judicial advice may be most acute in the case of a judge who has be en recently
appointed, perhaps directly from the legal profession rather than from another judicial
office, and who may lack prior judicial experience. The current practice is for questions
of disqualification and recusal to be determined solely by the jud ge concerned,1
although in practice judges may informally c onsult their colleagues for advice.2 There is
some material available to judges that offers assista nce in making determinations about
recusal,3 but none that specifically addresses the particula r issues raised by pre-judicial
advice. The relatively common practice of judge s declining to sit without providing
reasons exacerbates the lack of guidance available. Thus, while it is a question that may
arise only relatively infrequently, it is one that merits more sustained attention.
This article commences by tracing two controve rsial High Court cases in which the
question of disqualification on the basis of pr e-judicial advice arose but was
unsatisfactorily resolved: Gageler J's recusal in Unions NSW v New South Wales4 and
Callinan J's in Kartinyeri v Commonwealt h.5 The article then briefly explains the relevant
legal principles that govern disqualificatio n, before turning to an analysis of their
application to cases that raise issues co ncerning pre-judicial advice. We deve lop an
argument that the provisi on of a pre-judicial opini on on a question of law should not
necessarily constit ute grounds for disqualification on the basis of bias or even broader
grounds relating to fairness between the parties. Provided the law allows the judge to
give a public account of this advice or the 'gist' of the advice (and we argue that it does,
or should), there is little to distinguish pre-jud icial opinions on matters of law from
judicial comments in obiter dicta, or extra -judicial writings and speeches that express
opinions on the law. We conclude wit h a brief consideration of the application of the law
of waiver of legal professional privile ge in circumstances where the existence, but not the
content, of a pre-judicial opinion has been revealed.
II PRE-JUDICIAL ADVICE IN AUSTRALIA
In the last 15 years, disqualification on the basi s of pre-judicial advice has arisen twice
1 See further discussion of this practice in Sir Anthony Mason, 'Judicial Disqualification for
Bias or Apprehended Bias and the Problem of Appellate Review' (1998) 1 Constitutional Law
and Policy Review 21.
2 There is no formal judicial ethics advisory board, such as exist in some States in the United
States, eg, the Colorado State Judicial Ethics Advisory Board, <http://www.courts.
state.co.us/Courts/Supre me_Court/Committees/Committee.cfm?Co mmittee_ID=15>.
3 See, eg, Melissa Perry, Disqualification of Judges: Practice and Procedures: Discussion Paper
(Australian Institute of Judicial Administration, 2001); James Burrow Thomas, Judicial Ethics
in Australia (LexisNexis Butterworths, 3rd ed, 2009); Grant Hammond, Judicial Recusal:
Principles, Process and Problems (Hart Publishing, 2009); John Tarrant, Disqualification for Bias
(Federation Press, 2012).
4 (2013) 252 CLR 530 ('Unions NSW').
5 (1998) 195 CLR 337 ('Kartinyeri').
2015 Disqualification of Judges and Pre-judicial Advice 203
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in the High Court in constitutional ly important and high profile ma tters. Both cases
suggest that the legal principles governin g disqualification in these circumsta nces
remain insufficiently developed.
On 5 November 2013, seven judges of the High Court sat ready to hear the first day
of argument in Unions NSW.6 The case proved to be an important decision involving the
application of the implied fr eedom of political communication to the New South Wales
Parliament's campaign finance reforms. As the hearing was set to commence, counsel
for the Attorney-General of the Commonwealth (an intervener in the proceedings) drew
the Court's attention to the f act that advice had been provided by a justice of the Court
that, counsel said, 'touched on' the constitutional v alidity of one of the challenge d
provisions.7 The opinion was not provided to the other parties in the case. The Court
adjourned. More than an hour later, the Court returned. Counsel for the Commonwealth
clarified that it had no applicatio n to make. No other party made an application, or
provided submissions on the issue of whether Gagele r J ought to be disqualified from
hearing the case. Gageler J then proceeded to give brief reasons for recusing himself. He
explained that, in his former capacity as Commonwealth Solicitor-General, he had
provided signed legal advice to the Common wealth Attorney-General that touched on
the validity of provisions challenged in the pr oceedings. Gageler J said that, before the
announcement by counsel for the Attorney-General, he had be en unable publicly to
disclose the fact that he had given the advice. He had previously carefully considered
the question of whether the provision of the advice gav e rise to any apprehension of
bias, but was not satisfied that it did and thus considered that it was his duty to sit as a
member of the Court. However, since the existence of the advice, but not the content of
the advice, had now been disclosed, he felt obliged to recuse himself 'to dispel any
apprehension of bias'. 8
In the six months follow ing, Gageler J did not sit on further important constitutional
cases. In each ca se it appears that his reasons for not sitting may have been connected
with his providing pre-judicial advice. I n Commonwealth v Australian Capital Terri tory,9
in which the Commonwealth challenged the validity of the Marriage Equality (Same Sex)
Act 2013 (ACT), Gageler J did not sit. Unlike in Unions NSW, Gageler J provided no
reasons for this. It was widely thoug ht that it was because he had previously provided
a joint opinion concernin g the validity of an earlier proposed civil union sche me in the
Territory.10 The Territory had made that ad vice publicly available.11 In Williams v
6 (2013) 252 CLR 530.
7 Transcript of Proceedings, Unions NSW v New South Wales [2013] HCATrans 263 (5
November 2013), lines 23–30.
8 Ibid, lines 53–77.
9 (2013) 250 CLR 441 ('Same Sex Marriage Case').
10 See, eg, Jeremy Gans, 'Same-Sex Marriage Hearing Ins and Outs', Opinions on High (online), 3
December 2013, <https://blogs.unimelb.edu.au/opinionsonhigh/2013/12/03/news-same-
sex-marriage-hearing-ins-and-outs>; Frank Brennan, 'High Court Leaves Same Sex Marriage
Door Ajar', Eureka Street (online), 15 December 2015,
<http://www.eurekastreet.com.au/article.aspx?aeid=38637#.VbyipEtN3wJ>.
11 David Jackson QC and Stephen Gageler SC, 'Re Civil Partnerships Bill 2006; Ex parte
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