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Published online by Cambridge University Press: 01 January 2025
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.
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.
1 See further discussion of this practice in SirMason, Anthony, ‘Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review’ (1998) 1 Constitutional Law and Policy Review 21.Google Scholar
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, Perry, Melissa, Disqualification of Judges: Practice and Procedures: Discussion Paper (Australian Institute of Judicial Administration, 2001)Google Scholar; Thomas, James Burrow, Judicial Ethics in Australia (LexisNexis Butterworths, 3rd ed, 2009)Google Scholar; Hammond, Grant, Judicial Recusal: Principles, Process and Problems (Hart Publishing, 2009)Google Scholar; Tarrant, John, Disqualification for Bias (Federation Press, 2012).Google Scholar
4 (2013) 252 CLR 530 (‘Unions NSW’).
5 (1998) 195 CLR 337 (‘Kartinyeri’).
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 Australian Capital Territory’ (Joint Opinion, 5 May 2008).
12 (2014) 252 CLR 416.
13 (2012) 248 CLR 156.
14 (2014) 309 ALR 29.
15 (2011) 244 CLR 144 (‘Malaysian Declaration Case’).
16 Stephen Gageler SC, Stephen Lloyd SC and Geoffrey Kennett SC, ‘In the Matter of the Implications of Plaintiff M70/2011 v Minister for Immigration and Citizenship for Offshore Processing of Asylum Seekers under the Migration Act 1958 (Cth): Opinion’ (SG No 21 of 2011, 2 September 2011) <http://resources.news.com.au/files/2011/09/04/1226129/101737-solicitor-general-advice.pdf>.
17 See further discussion of the role in Appleby, Gabrielle and Williams, John M, ‘Public Sentinels’ in Appleby, Gabrielle, Keyzer, Patrick and Williams, John M (eds), Public Sentinels: A Comparative Study of Australian Solicitors-General (Ashgate Publishing, 2014) 12.Google Scholar
18 Elevation of State Solicitors-General to State and federal courts occurs more frequently. These appointments raise similar issues.
19 Sir Charles Powers had been the Crown Solicitor for the Commonwealth immediately prior to his appointment to the High Court in 1913, before the office of Commonwealth Solicitor-General was created.
20 (1998) 195 CLR 337.
21 Kartinyeri v Commonwealth (1998) 156 ALR 300.
22 Transcript of Proceedings, Kartinyeri v Commonwealth [1998] HCATrans 10 (4 February 1998).
23 Transcript of Proceedings, Kartinyeri v Commonwealth [1998] HCATrans 12 (5 February 1998).
24 Transcript of Proceedings, Kartinyeri v Commonwealth [1998] HCATrans 13 (5 February 1998).
25 Transcript of Proceedings, Kartinyeri v Commonwealth [1998] HCATrans 43 (18 February 1998).
26 See, eg, Re Nolan; Ex parte Young (1991) 172 CLR 460, 496 (Gaudron J); Leeth v Commonwealth (1992) 174 CLR 455, 470 (Mason CJ, Dawson and McHugh JJ); Condon v Pompano Pty Ltd (2013) 252 CLR 38, 71–2 [67]–[68] (French CJ), 102 [167], 103 [169] (Hayne, Crennan, Kiefel and Bell JJ), 105–8 [180]–[188] (Gageler J); Wheeler, Fiona, ‘The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia’ (1997) 23 Monash Law Review 248, 252Google Scholar; Tilmouth, Sydney and Williams, George, ‘The High Court and the Disqualification of One of its Own’ (1998) 73 Australian Law Journal 72, 76–8.Google Scholar
27 Condon v Pompano Pty Ltd (2013) 252 CLR 38, 99 [156] (Hayne, Crennan, Kiefel and Bell JJ), 108 [188] (Gageler J).
28 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [37].
29 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 426 [5] (Gleeson CJ, Gaudron and Gummow JJ).
30 (2000) 201 CLR 488, 492 [11]. See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344–5 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
31 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The law also makes provision for circumstances where considerations of waiver or necessity dictate that a judicial officer may, or must, sit in situations in which a judge might otherwise be disqualified for apprehended bias: at 344 [6], 359 [63] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
32 Ibid 345 [8].
33 See comments to this effect, and a discussion of four categories of apprehended bias, in Webb v The Queen (1994) 181 CLR 41, 74 (Deane J). These are: interest, conduct (including prejudgment), association and extraneous information. Prejudgment has been considered by some to involve such numerous and discrete issues as to justify treatment as a separate category: Aronson, Mark and Groves, Matthew, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013) 632 [9.120].Google Scholar See also Griffiths, John, ‘Apprehended Bias in Australian Administrative Law’ (2010) 38 Federal Law Review 353, 357.CrossRefGoogle Scholar
34 Kioa v West (1985) 159 CLR 550, 629 (Brennan J).
35 (1983) 151 CLR 288, 294 (Mason, Murphy, Brennan, Deane and Dawson JJ).
36 Supreme Court Supplementary Civil Rules 2014 (SA), r 242(3)(d).
37 For example, in 2012, the former Chief Justice of the Northern Territory, Brian Ross Martin QC, was appointed as an acting judge of the Western Australian Supreme Court to preside over a murder trial where the deceased and the accused were both prominent members of the Western Australian legal profession: Christiana Jones, ‘The Judge: Brian Martin’, The West Australian (online), 13 July 2012 <https://au.news.yahoo.com/thewest/a/14225053/>.
38 A full analysis of whether this pragmatic approach is desirable is beyond the scope of this article.
39 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 100 (Gaudron and McHugh JJ). See also Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J), 359–60 (Wilson J), 371 (Dawson J); Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531–2 [72] (Gleeson CJ and Gummow J).
40 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 553–554. See also R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 116 (Dixon CJ, Williams, Webb and Fullagar JJ); R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 261–2 (Barwick CJ, Gibbs, Stephen and Mason JJ).
41 See, eg, Livesey v New South Wales Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427. See discussion in Aronson and Groves, above n 33, 643–4, 652.
42 Geyh, Charles Gardner, ‘Why Judicial Disqualification Matters. Again.’ (2011) 30 Review of Litigation 671, 678.Google Scholar
43 Ibid 677, tracing the right to challenge to 530 AD and the Codex Justinianus.
44 Finn, Chris, ‘Extrajudicial Speech and the Prejudgment Rule: A Reply to Bartie and Gava’ (2014) 34 Adelaide Law Review 267, 279.Google Scholar
45 Cf Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 564 [187] (Hayne J). This is consistent with the language employed in the Universal Declaration on the Independence of Justice (‘Montreal Declaration’) § 2.02: ‘Judges individually shall be free, and it shall be their duty, to decide matters impartially, in accordance with their assessment of the fact and their understanding of the law … ‘ (emphasis added).
46 Kartinyeri v Commonwealth (1998) 156 ALR 300, 301 [8].
47 Council of Chief Justices of Australia, Guide to Judicial Conduct (Australasian Institute of Judicial Administration, 2002) 23Google Scholar; see also discussion in Williams, John M, ‘Judges’ Freedom of Speech: Australia’ in Lee, H P (ed), Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 153, 169.CrossRefGoogle Scholar
48 (1999) 166 ALR 302, 306 [11].
49 Infrequently, the constitutional validity of legislation will turn, at least partly, on questions of fact because the constitutional validity of Commonwealth legislation may depend upon ‘constitutional’ or ‘legislative’ facts.
50 (2013) 250 CLR 441.
51 Gascor v Ellicott [1997] 1 VR 332, 348 (Ormiston JA); Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302, 307 [12] (Hayne J). See also Kartinyeri v Commonwealth (1998) 156 ALR 300, 303 [19]–[22] (Callinan J).
52 Bartie, Susan and Gava, John, ‘Some Problems with Extrajudicial Writing’ (2012) 34 Sydney Law Review 637, 637.Google Scholar
53 Ibid 638. See also Campbell, Enid, ‘Judges’ Freedom of Speech’ (2002) 76 Australian Law Journal 499Google Scholar; see also MZWCL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 635 (20 July 2006) [47] (Finn J).
54 Bartie and Gava, above n 52, 655.
55 McIntyre, Joe, The Nature and Implications of the Judicial Function (PhD Thesis, University of Cambridge, 2012) 145.Google Scholar
56 See, eg, Yale Law School's Cultural Cognition project: <http://www.culturalcognition.net>.
57 Griffin, Dale W and Ross, Lee, ‘Subjective Construal, Social Inference and Human Misunderstanding’ (1991) 24 Advances in Experimental Social Psychology 319, 321CrossRefGoogle Scholar; Krech, David and Crutchfield, Richard S, Theory and Problems of Social Psychology (McGraw Hill, 1948) 94.CrossRefGoogle Scholar
58 Pronin, Emily, Gilovich, Thomas and Ross, Lee, ‘Objectivity in the Eye of the Beholder: Divergent Perceptions of Biases in Self Versus Others’ (2004) 111 Psychology Review 781, 296.CrossRefGoogle ScholarPubMed
59 Marbes, Melinda A, ‘Refocusing Recusals: How the Bias Blind Spot Affects Disqualification Disputes and Should Reshape Recusal Reform’ (2013) 32 Saint Louis University Public Law Review 235, 249Google Scholar, citing Guthrie, Chris et al, ‘Inside the Judicial Mind’ (2001) 86 Cornell Law Review 777, 780–83.Google Scholar
60 McIntyre, above n 55, 166.
61 Pronin, Emily, Lin, Daniel Y and Ross, Lee, ‘The Bias Blind Spot: Perceptions of Bias in Self Versus Others’ (2002) 28 Personality and Social Psychology Bulletin 369.CrossRefGoogle Scholar
62 Posner, Richard A, How Judges Think (Harvard University Press, 2008) 61 and ch 2 more generally.Google Scholar
63 Geyh, above n 42, 700.
64 Paterson, Alan, Final Judgment: The Last Law Lords and the Supreme Court (Hart Publishing, 2013) 75.Google Scholar
65 Ibid 176–7.
66 Paterson's empirical research revealed that it occurred more often than the Law Lords themselves perceived: ibid 195.
67 Ibid 177.
68 See discussion below and also that in Groves, Matthew, ‘Public Statements by Judges and the Bias Rule’ (2014) 40(1) Monash University Law Review 115, 122–30.Google Scholar
69 Marshall, T D, Judicial Conduct and Accountability (Carswell, 1995) 1819.Google Scholar
70 See also discussion in Groves, Matthew, ‘Empathy, Experience and the Rule Against Bias in Criminal Trials’ (2012) 36 Criminal Law Journal 84, 100.Google Scholar
71 409 US 824 (1972).
72 Ibid 835.
73 536 US 765 (2002).
74 Ibid 775.
75 Ibid 777.
76 Ibid.
77 Ibid.
78 Ibid 778.
79 See also Groves, Matthew, ‘Public Statements by Judges and the Bias Rule’ (2014) 40 Monash University Law Review 115.Google Scholar
80 Hoekstra v HM Advocate (No 2) [2000] SLT 602, 612 (Lord Rodger, Lord Sutherland and Lady Cosgrove).
81 [2000] QB 451, 495 [85].
82 Ibid. Also in the United Kingdom, to maintain perceptions of impartiality on legal issues, a convention developed during Lord Bingham's time that the Law Lords would not speak during substantive parliamentary debates: Paterson, above n 64, 317.
83 Newcastle City Council v Lindsay [2004] NSWCA 198 (22 June 2004), [36] (Tobias JA, Giles JA and McClellan AJA agreeing), where it was indicated that mild criticism of the legal position in extra-judicial writings will not give rise to questions of impartiality, provided those views are not ‘vehemently or trenchantly expressed’.
84 For example, an opinion which is expressed as a prediction of what a court, or courts in general, would be likely to do might be less likely to give rise to a reasonable apprehension of bias than an opinion expressed in terms of the judge's own view of the law. See also discussion in Williams, John M, ‘Judges’ Freedom of Speech: Australia’ in Lee, H P (ed), Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 153.CrossRefGoogle Scholar
85 This occurred, for example, in Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599, when Dawson J did not sit because he had advised the Victorian government on the likely outcome of the proceedings when he was the State Solicitor-General, before his appointment: Tilmouth, Sydney, ‘Disqualification of Justices’ in Coper, Michael, Blackshield, Tony and Williams, George (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 214.Google Scholar See also Isbester v Knox City Council (2015) 320 ALR 432, 445–6 [62]–[65] (Gageler J).
86 So this arises as an instance of apparent bias by ‘association’, which is the third category of bias identified in Webb v The Queen (1994) 181 CLR 41, 74 (Deane J).
87 Kartinyeri v Commonwealth (1998) 156 ALR 300, 304 [29], referring to the position of Murphy J in the preparation of legislation subsequently before the Court in Victoria v Commonwealth (1975) 134 CLR 81.
88 Kartinyeri v Commonwealth (1998) 156 ALR 300, 305 [38].
89 (1991) 173 CLR 78, 87–8.
90 This may also impact on the quality of candidates willing to accept appointment as Solicitor-General. It might also impact on when governments seek the advice of their Solicitors-General, which would also be undesirable: see also text accompanying below nn 130–32.
91 Same Sex Marriage Case (2013) 250 CLR 441.
92 Jackson and Gageler, above n 11, [41].
93 Ibid [43].
94 See also Note, ‘High Court Practice as to Eligibility of Judges to Sit in a Case’ (1975) 49 Australian Law Journal 110, 112–13.Google Scholar
95 Aronson and Groves, above n 33, 631. See also Atrill, Simon, ‘Who is the “Fair-Minded and Informed Observer“? Bias after Magill’ (2003) 62 Cambridge Law Journal 279.CrossRefGoogle Scholar
96 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 306 [48].
97 For further analysis, see Griffiths, above n 33, 358–61.
98 Australian Bar Association, Barristers’ Conduct Rules (at 1 February 2010) r 108.
99 If the advice was provided to a non-party, for the reasons above, we would argue that disqualification should not arise either on the basis of reasonable apprehension of bias (provided the advice was not expressed trenchantly or involved findings of fact or credit) or of unfairness (as the content of the advice is not known to either party).
100 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434 [28] (Gleeson CJ, Gaudron and Gummow JJ).
101 Such as where the advice turned on disputed questions of fact or credit, or related to specific litigation such that its disclosure would tend too closely to associate the judge with the party in respect of that particular litigation, or where it was expressed in unusually trenchant terms.
102 [2000] NSWCA 368 (15 December 2000).
103 Ibid [9]; see also [10].
104 (2012) 83 NSWLR 385, and followed in Fattal v The Queen [2013] VSCA 276 (2 October 2013).
105 CUR24 v DPP (NSW) (2012) 83 NSWLR 385, 394 [32].
106 Ibid 396 [41].
107 Ibid 396 [41]–[42] (Meagher JA, Basten JA and Whealy JA agreeing).
108 This distinguishes a view previously expressed in reasons for judgment or in a public extra-judicial writings.
109 Kioa v West (1985) 159 CLR 550, 629.
110 Problems of these kinds do not arise exclusively in circumstances where a pre-judicial opinion has been provided to one party and not to the other. In a practical sense, similar insight into the judge's way of thinking might arise if counsel for one party, but not the other, had shared chambers with the judge prior to appointment, or had attended a particular public speech by the judge. But the circumstance that one party holds a pre-judicial opinion while the judge is ostensibly precluded, by reason of confidentiality, from disclosing that fact, seems to raise the issue especially acutely.
111 See further Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 60–1 [41] (French CJ), citing Jacob, I H, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems 23, 27CrossRefGoogle Scholar, cited in MacMillan Bloedel Ltd v Simpson [1995] 4 SCR 725, 749–50 [30] (Lamer CJ); Whan v McConaghy (1984) 153 CLR 631, 642 (Brennan J); John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476 (McHugh JA); R v Moke [1996] 1 NZLR 263, 267.
112 Cf A v United Kingdom (2009) 49 EHRR 29, [220].
113 See Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, 472 and Council of Chief Justices of Australia, Guide to Judicial Conduct (2nd ed, AIJA, 2007) [3.5(e)].Google Scholar
114 There may be an issue as to whether the advice is discoverable, at least its existence is discoverable, even if privilege is claimed over its content. However, as we explain above, many constitutional challenges occur in the absence of facts and the discovery process.
115 So much is consistent with what was said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 360 [69]–[71] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Counsel for the Commonwealth provided no explanation as to why there might be an obligation to reveal the existence of the advice. It might be suggested that such an obligation may be sourced in the government's model litigant obligations: see Appleby, Gabrielle, ‘The Government as Litigant’ (2014) 37 University of New South Wales Law Journal 94Google Scholar; Cameron, Camille and Taylor-Sands, Michelle, ‘“Playing Fair”: Governments as Litigants’ (2007) 26 Civil Justice Quarterly 497.Google Scholar The courts have previously found that these obligations prevent the government from claiming legal professional privilege where an obligation to disclose documents arises, and to inform the court of the full circumstances of the case: Queensland v Allen [2012] 2 Qd R 148, 170 (Fryberg J); VR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166, 175–6 [40]–[42] (North, Logan and Robertson JJ). However, the courts have never gone so far as to require the disclosure of matters properly covered by legal professional privilege. To do so would be to undermine the clear public interest in granting confidentiality to government legal advice: see Waterford v Commonwealth (1987) 163 CLR 54, 62 (Mason and Wilson JJ).
116 For discussion of the potential dangers of strategic and over use of applications for disqualification, see Geyh, above n 42, 700; Cravens, Sarah M R, ‘In Pursuit of Actual Justice’ (2007) 59 Alabama Law Review 1.Google Scholar
117 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 348 [20]. Note also that concern has been expressed about allowing litigants to control or influence listing arrangements: Re JRL; Ex parte CJL (1986) 161 CLR 342, 352; Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 107 ALR 581; Vietnam Veterans’ Association of Australia v Gallagher (1994) 52 FCR 34, 41–2; Gascor v Ellicott [1992] 1 VR 332, 348; Kwakye v Minister for Immigration and Multicultural Affairs [1998] FCA 1324 (20 October 1998). We hasten to add that we do not suggest that any tactical decision informed the conduct of counsel in Unions NSW: indeed, as noted above, it appears that counsel may well have regarded himself as duty-bound to draw the Court's draw attention to the existence of the advice as soon as he became aware of it. Nor would a deliberate tactical deployment of information in this way appear to accord with the obligations of a model litigant. But, of course, a judicial officer might have provided pre-judicial advice to a party who is not bound to act as a model litigant.
118 [1986] SLT 244.
119 Ibid 248.
120 A post-judgment revelation giving rise to apprehended bias was remedied by the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119, where the Court claimed an inherent jurisdiction to review the original decision on the basis of its inherent jurisdiction to maintain the integrity of the judicial process. It is not clear whether this precedent would be followed in Australia. In New Zealand, the Supreme Court recalled an earlier judgment after additional facts about the judge's relationship to counsel in the litigation were revealed. The Court held that because the additional facts, if disclosed before the hearing, would have led the Court to the conclusion of apparent bias, a ‘special reason’ existed which would justify recalling the judgment: Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122 (27 November 2009), [19] (the Court), following Horowhenua County v Nash (No 2) [1968] NZLR 632, 633 (Wild CJ).
121 See, eg, D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; R v Carroll (2002) 213 CLR 635.
122 See, eg, discussion in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128, 139 (Gleeson CJ, McHugh, Gummow and Hayne JJ), 153–4 (Kirby J).
123 The influence of individual judges in multi-member courts, particularly final appellate courts, has been chronicled in the judges’ own words in Paterson, above n 64, 130..
124 IW v City of Perth (1997) 191 CLR 1, 50–1; McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504, 524 (Basten JA), but cf 511–13 (Spigelman CJ).
125 This is informally known as the ‘Ginsburg rule’, after Justice Ruth Bader Ginsburg indicated in her opening statement to the Judiciary Committee that she would not respond to questions where it would provide a ‘preview’, ‘hint’ or ‘forecast’ of how she might cast her vote on issues before the Court. See further Denis Steven Rutkus, ‘Questioning Supreme Court Nominees About Their Views on Legal or Constitutional Issues: A Recurring Issue’ (Congressional Research Service, 23 June 2010) <https://www.fas.org/sgp/crs/misc/R41300.pdf>.
126 In the history of that Court, three justices have been appointed whilst holding the position of United States Solicitor-General, namely Stanley Forman Reed, Thurgood Marshall and Elena Kagan. William Howard Taft had previously been Solicitor-General (1890–1891) but, before his appointment as Chief Justice of the United States Supreme Court in 1921, also served as a judge of the United States Court of Appeals for the Sixth Circuit (1891-1900), Governor-General of the Philippines (1901–1904), Secretary of War (1904–1908) and President of the United States (1909–1913). Justice Robert H Jackson had previously been Solicitor-General (1938–40) but also served as Attorney-General (1940–41) prior to his appointment to the Supreme Court in 1941.
127 28 US Code §455.
128 In Australia there would be a question as to whether a statute could mandate the test for disqualification because of the protections afforded to judicial independence and impartiality by Chapter III of the Constitution.
129 Questions have even been raised as to whether it is constitutional for the legislature to dictate when judges can sit: see, eg, Spektor, Andrey and Zuckerman, Michael, ‘Judicial Recusal and Expanding Notions of Due Process’ (2011) 13 Journal of Constitutional Law 977, 1004Google Scholar; Louis J Virelli, ‘The (Un)constitutional Supreme Court Recusal Standards’ [2011] Wisconsin Law Review 1181.
130 See further Sample, James, ‘Conflict in the Court? Supreme Court Recusal from Marbury to the Modern Day’ (2013) 26 Georgetown Journal of Legal Ethics 95Google Scholar; Ifill, Sherrilyn A and Segall, Eric J, ‘Judicial Recusal at the Court’ (2011) 160 University of Pennsylvania Law Review Online: PENNumbra 331Google Scholar; Rotunda, Ronald D, ‘Judicial Disqualification when a Solicitor General Moves to the Bench’ (2010) 11 Engage: The Journal of the Federalist Society's Practice Groups 94.Google Scholar
131 132 SC 2566 (2012).
132 See Eric Segall, ‘A Liberal's Lament on Kagan and Healthcare’, Slate (online) 8 December 2011, <http://www.slate.com/articles/news_and_politics/jurisprudence/2011/12/obamacare_and_the_supreme_court_should_elena_kagan_recuse_herself_.html>.
133 Tasmania v Victoria (1935) 52 CLR 157, 173 (Rich J), 183–5 (Dixon J); Re Wakim; Ex parte McNally (1998), 539–49 [1] (Gleeson CJ), 548 [33] (McHugh J), 570–1 [100]–[101] (Gummow and Hayne JJ, Gaudron J agreeing).
134 An argument could be mounted that if the party in possession of advice brings proceedings, or intervenes in proceedings, this itself might be regarded as ‘conduct inconsistent with the maintenance of the confidentiality which the privilege is designed to protect’ and thus waives privilege in the advice, insofar as is required to dispel any apprehension of bias or perceived unfairness. Such a position might be seen as an extension of the cases where an individual waives privilege by bringing proceeding against his or her legal adviser (see, eg, Goldberg v Ng (1995) 185 CLR 83). However, such an approach would have the potential to interfere with a party's choice as to whether to bring proceedings, or even whether to seek legal advice. It might also be possible to argue that the appointment of a former Commonwealth Solicitor-General to the bench should be regarded as effecting a waiver of privilege in advice that he or she may have provided while in that position, at least whenever issues touched upon in such advice arise for decision by the judge. We would counsel against such an approach, as it may reduce the willingness of governments to appoint serving or former Solicitors-General to the bench. See further exploration of this issue above n 90.
135 Greenough v Gaskell (1833) 1 Myl & K 98, 102; 39 ER 618, 620; Wolfram, Charles, Modern Legal Ethics (West Publishers, 1986) 243Google Scholar; Grant v Downs (1976) 135 CLR 674; Baker v Campbell (1983) 153 CLR 52.
136 Nine Films and Television Pty Ltd v Ninox Television Ltd Tamberlin J , quoted in Osland v Secretary to the Department of Justice (2008) 234 CLR 275, 298–9 [49] (Gleeson CJ, Gummow, Heydon and Kiefel JJ).
137 Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd (2009) 179 FCR 323.
138 Prus-Grzybowski v Everingham (1986) 87 FLR 186, 190.
139 Osland v Secretary to the Department of Justice (2008) 234 CLR 275, 298 [48] (Gleeson CJ, Gummow, Heydon and Kiefel JJ), 312 [97] (Kirby J).
140 See, eg, Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; Australian Competition and Consumer Commission v Cathay Pacific Airways Ltd (2012) 207 FCR 380.
141 Mann v Carnell (1999) 201 CLR 1, 13 [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
142 Transcript of Proceedings, Unions NSW v New South Wales [2013] HCATrans 263 (5 November 2013), lines 48–9 (N J Williams SC).
143 This raises a further issue, as no submissions were made that there was a connection between the pre-judicial advice and the possibility that Gageler J would not be able to engage in impartial decision-making. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the High Court emphasised the importance of this step.
144 (2006) 227 CLR 423, 439 [43].
145 (1989) 167 CLR 568, 572, quoted in ibid.
146 See S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358, 373 (Kirby P); Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684, 687 (Kirby P).
147 See Vakauta v Kelly (1989) 167 CLR 568, 577–8 (Dawson J).
148 Ibid.
149 Ibid 588; see also 572 (Brennan, Deane and Gaudron JJ), 577 (Dawson J).
150 Groves, Matthew, ‘Waiver of the Rule Against Bias’ (2009) 35(2) Monash University Law Review 315, 321.Google Scholar
151 See Transcript of Proceedings, Kartinyeri v Commonwealth [1998] HCATrans 43 (18 February 1998) (Brennan CJ).