University of New South Wales Law Research Series DISQUALIFICATION OF JUDGES AND PRE-JUDICIAL ADVICE GABRIELLE APPLEBY AND STEPHEN MCDONALD (2015) 43 Federal Law Review 201 [2016] UNSWLRS 76 UNSW Law UNSW Sydney NSW 2052 Australia E: [email protected] W: http://www.law.unsw.edu.au/research/faculty-publications AustLII: http://www.austlii.edu.au/au/journals/UNSWLRS/ SSRN: http://www.ssrn.com/link/UNSW-LEG.html 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 practice as a legal practitioner, prior to appointment to judicial officer, particularly where that opinion was on a matter of law only (including the constitutional validity of legislation). We suggest that questions concerning disqualification of judicial officers in such circumstances might be better approached by considering broader concepts of fairness, in addition to asking whether the provision of the pre-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 may depend upon whether one party to the litigation chooses to disclose 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 practice in which they will have provided opinions on various legal questions. Given this 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 matter 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 legislation subsequently in question before the court — questions remain as to whether and when the judge, or the party to whom the advice was provided, can and should disclose its existence, whether a judge who provided such advice should disqualify 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. Electronic copy available at: http://ssrn.com/abstract=2765694 202 Federal Law Review Volume 43 _____________________________________________________________________________________ herself and, if so, on what basis. Often, questions of whether the provision of pre-judicial 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 been 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 judge concerned,1 although in practice judges may informally consult their colleagues for advice.2 There is some material available to judges that offers assistance in making determinations about recusal,3 but none that specifically addresses the particular issues raised by pre-judicial advice. The relatively common practice of judges 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 controversial High Court cases in which the question of disqualification on the basis of pre-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 Commonwealth.5 The article then briefly explains the relevant legal principles that govern disqualification, before turning to an analysis of their application to cases that raise issues concerning pre-judicial advice. We develop an argument that the provision of a pre-judicial opinion on a question of law should not necessarily constitute 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-judicial 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 with a brief consideration of the application of the law of waiver of legal professional privilege 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 basis 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/Supreme_Court/Committees/Committee.cfm?Committee_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'). Electronic copy available at: http://ssrn.com/abstract=2765694 2015 Disqualification of Judges and Pre-judicial Advice 203 _____________________________________________________________________________________ in the High Court in constitutionally important and high profile matters. Both cases suggest that the legal principles governing disqualification in these circumstances 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 freedom 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 fact that advice had been provided by a justice of the Court that, counsel said, 'touched on' the constitutional validity of one of the challenged 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 application to make. No other party made an application, or provided submissions on the issue of whether Gageler 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 Commonwealth Attorney-General that touched on the validity of provisions challenged in the proceedings. Gageler J said that, before the announcement by counsel for the Attorney-General, he had been 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 gave 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 following, Gageler J did not sit on further important constitutional cases. In each case it appears that his reasons for not sitting may have been connected with his providing pre-judicial advice. In Commonwealth v Australian Capital Territory,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 thought that it was because he had previously provided a joint opinion concerning the validity of an earlier proposed civil union scheme in the Territory.10 The Territory had made that advice 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>.