QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCATrans 217 (13 December 2022)

Last Updated: 14 December 2022

[2022] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M53 of 2022

B e t w e e n -

QYFM

Appellant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 13 DECEMBER 2022, AT 10.00 AM

Copyright in the High Court of Australia
MR E.M. NEKVAPIL, SC: If it please the Court, I appear with MR N. BOYD‑CAINE and MR C.J. FITZGERALD for the appellant. (instructed by Zarifi Lawyers)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with MR A.F. SOLOMON‑BRIDGE and MS A.N. REGAN for the first respondent. (instructed by Clayton Utz)

KIEFEL CJ: Yes, Mr Nekvapil.

MR NEKVAPIL: Your Honours, we propose to start with ground 2 and then to address ground 1, if it is convenient. We start just by framing very briefly the notional observer because it becomes important to our argument. Justice must be done and be seen to be done, and this was of course neatly encapsulated in Charisteas [2021] HCA 29; (2021) 393 ALR 389 at paragraph [21], and this requires a judiciary that is both independent and impartial, and is seen to be both independent and impartial, and in Charisteas at paragraph [21] – that is at tab 24 of the authorities – this was encapsulated in a sentence:

The hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system.

Of course, whether the court is independent and impartial is a question for the court to determine from its orthodox viewpoint, that is, from the Bench, whereas whether the court is seen to be independent and impartial requires the viewpoint of the public, such that Chief Justice Mason and Justice McHugh in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 52, point 1, said:

it is the court’s view of the public’s view, not the court’s own view, which is determinative.

In our submission – and as is well‑established by your Honours’ observations – the metaphorical observer has been created to remind judges of the need to keep viewing the salient facts from the view of the public, rather than the view from the Bench, and the function of attributing metaphorical characteristics to the observer while denying other characteristics to the observer is to ensure that the observer does not, while viewing the salient facts, as it were, leave the public gallery and creep up onto the Bench.

With that framing, we invite your Honours to take up the viewpoint of the public – of the notional observer – as we move to the salient facts of this case. The focus, we would submit, in this case, is on the two roles that were performed by Justice Bromwich and, in a narrative sense, on two specific occasions – the first where his Honour appeared as Commonwealth Director of Public Prosecutions in the Victorian Court of Appeal on 12 August 2014, and the second when his Honour sat as a member of the Full Court on 17 August 2021.

If we could go now just go to the appellant’s book of further materials and if I could give your Honours some of the key references and outline that narrative that we say the observer would pay attention to. The first of those two occasions, your Honours can see at tab 3 on page 16 of the book of further materials, which is the cover page of the judgement of the Victorian Court of Appeal. On that day, 12 August 2014, the Victorian Court of Appeal was sitting in Melbourne to hear QYFM’s appeal from his conviction by the County Court of Victoria of:

importing a marketable quantity of a border controlled drug (cocaine) contrary to s 307.2(1) of the Criminal Code.

Now, the observer would obviously have a bit of a backstory to this day, including that the prosecution had been instituted by the Office of the Director of Public Prosecutions, and just pausing there, we accept, because we have come by way of appeal, that we do not need the observer to be aware of whether, at the time of the criminal proceeding being instituted, Justice Bromwich was the DPP or not. Our argument relies on the observer knowing only that it was the Office of Director and the Director for the time being who instituted the appeal. That was done in accordance with section 6(1)(a) of the Director of Public Prosecutions Act 1983, which I will refer to as the DPP Act.

The observer would know that the trial had been carried on by the DPP by junior counsel and your Honours can see the name of that junior counsel in tab 1 of the folder at paragraph 5. I will just try to avoid some of the details of these reasons, but it appears at the start of paragraph 5 on page 5 of the appellant’s book of further materials. The trial was held between 7 October 2013, when QYFM pleaded not guilty, and 27 October 2013, when the jury delivered a guilty verdict – and your Honours can see that in paragraph 1 of the sentencing reasons on the same page. I just note, just in case your Honours notice it later, but on the cover page of the Court of Appeal’s judgment, it actually gives 17 October as the date of their conviction, but it does not matter to our argument, which it is – we would submit – that the sentencing judge was probably correct.

During the period of the trial, your Honours do know, in our submission, that Justice Bromwich – then Mr Bromwich of Senior Counsel – held the Office of the Commonwealth DPP. Your Honours know that, in essence, because Justice Bromwich knew that, and this appeal is, because of the procedure that was adopted, an appeal from a decision where his Honour decided that issue, and although he said, I was Director up until the time, it obviously was a fact of which he was aware. And therefore, we would submit that your Honours can know at least by the time of the trial that he was the Director.

On 5 December 2013 – I should just say on that, there is no evidence – we do not submit – and the observer assumed that his Honour was not personally having personal involvement in the carrying‑on of the trial. All your Honours and the observer would know is that he was the Director at the time, and that it was being carried on by junior counsel.

On 5 December 2013, QYFM was sentenced by the County Court to 10 years imprisonment, with a non‑parole period of seven years, and 526 days reckoned as time served. Your Honours can see that in tab 2 of the appellant’s book of further materials, which is the National Police Certificate, which summarises the sentence. It is obviously also in the reasons for sentence.

That conviction and sentence enlivened the power of the Minister to cancel QYFM’s class BC subclass 100 partner visa. The relevant version of the Migration Act at that time is at tab 7. Your Honours know it very well, but at that time it enlivened the power in the sense that the Minister would then be satisfied that there was a substantial criminal offence, but it did not at that time compel cancellation.

The observer would know that QYFM had applied for leave to appeal his conviction. Now, while the notional observer from the public gallery would not be expected to understand the detail of the grounds or the argument, we would submit they would understand something like the following, that the grounds concerned the use at trial, as implied admissions, of statements made by QYFM when initially questioned by a Customs officer during a baggage examination at Melbourne Airport, following an anonymous tip‑off; that ground 1.1(a), which your Honours can see set out in paragraph 2 at page 17 of the book of further materials, that is:

Section 23V of the Crimes Act 1914 (Cth) required the [appellant’s] admissions to have been tape recorded or to have been later confirmed by being tape recorded –

the observer need not know the precise provision, but they would know that that ground turned on the question of whether QYFM was a suspect as defined in a Commonwealth statutory provision at the time of his questioning, and if he was, there was a non‑compliance. That was the nature of that ground.

The observer would understand that QYFM could only bring the appeal if first given leave by the Court of Appeal and helpfully between paragraph 2, which gives the date on which leave was granted, and paragraph 49, which is at page 37 of the book, paragraph 49 in the judgment of Justice Priest, your Honours see that it was Justice Priest who granted leave to appeal on the papers, being:

attracted to the notion that, Customs having received a ‘tip-off’ –

the Customs officer’s:

questioning of the appellant must have been directed to determining whether the appellant was involved in bringing illicit substances into Australia; and that, therefore –

the Customs officer – it was not in contention that he:

was an ‘investigating official’ –

but that he was:

questioning the appellant ‘as a suspect’.

So, from this, the notional observer would understand that Justice Priest had given leave because he thought ground 1.1(a) was a good ground. So, returning to the courtroom then, on 12 August 2014, the notional observer would observe with QYFM that junior counsel, if we just return to the cover page again, which is on page 16, we know from the appearances that junior counsel who had conducted the trial was again appearing for the DPP. That was pursuant to section 15(1)(c) and (e) of the DPP Act, but this time that he was being led by the DPP himself appearing in person as senior counsel for the Crown. The intermediate part of section 15(1) of the DPP Act allowed – empowered the DPP to appear in person on an appeal, which he did on this occasion.

They would see junior counsel for QYFM stand and present oral argument on the appeal. Then the observer would, with our client, see Justice Bromwich – then of Senior Counsel – rise to deliver oral submissions. The observer would understand in so seeing that Mr Bromwich was the holder of the Office of Commonwealth Director of Public Prosecutions, established by the Commonwealth Parliament in the DPP Act to perform the prosecutorial functions of the Commonwealth Executive. They would see the Director – both barrister and office‑holder – engaging in oral argument with the Bench. Now, of course, your Honours do not have a transcript of the argument, but returning to paragraph 49 at page 37, Justice Priest explained that:

With the benefit of full argument on the appeal –

And just pausing there, your Honours should infer that – or would infer – that that was mostly comprised of oral argument by the DPP:

and the added benefit of the analysis carried out by Redlich JA –

which your Honours should infer means that his Honour Justice Priest got a copy of Justice Redlich’s reasons – which he says in paragraph 48:

I am persuaded that that a conclusion that the appellant relevantly was a ‘suspect’ when initially questioned by –

the customs officer:

is not warranted.

The observer would then understand that the appeal was dismissed on 21 November 2014. From all of that, they would be left with the strong and accurate impression that the DPP had stepped in, in person, to successfully advocate for dismissal of QYFM’s appeal from the conviction obtained on prosecution by the Office of the Director – that is, his statutory Office or the office of which he was in charge under the statute. They would understand that these actions were the actions of the Prosecutor of the Commonwealth Executive. So, that is the end of that first scene.

The observer would know that soon afterwards, on 11 December 2014, section 501 of the Migration Act was amended, such as – among many other things – that one effect of the amendment was to require the Commonwealth Executive to cancel QYFM’s visa as the direct consequence of the conviction and sentence. The further consequence of that cancellation was compulsory removal from Australia, unless that cancellation was first revoked by the Executive – relevantly – some other things could have happened too, but that was the most obvious pathway.

The statutory procedure for revocation by the Executive, including merits review, is an error of considerable legal complexity which, in our submission, requires care to ensure the distance to the observer’s viewpoint is maintained. It is obviously something your Honours are very well familiar with – and the Full Court was very well familiar with – but it is not something that the observer would be familiar with, in the detail.

Could we go then, please, to the appellant’s chronology, and I will just try and take a bit of a shortcut through the next bit of the story up to the Full Court. So that, if your Honours commence at 8 November 2017 – I am sorry, that is on page 3 at line 21 – I noticed in preparing that the two dates above that need to be switched around. But from 8 November 2017 until 9 July 2020, that is, through the course of the section 501CA(4) pathway, the observer would be taken to understand something like the following: that the requirement to cancel QYFM’s visa and remove him from Australia as a consequence of his conviction and sentence was subject to a statutory discretion in the Executive to revoke the cancellation if there was a sufficiently good reason to do so. Secondly, that when that discretion was not exercised in QYFM’s favour, Parliament had also provided for a review by the AAT which then considered the exercise of the discretion afresh, but that the AAT had also refused to revoke the cancellation.

Then, as to the events from 13 August 2020, on page 4 at about line 15, up to 5 August 2021, that is, all of the events up to the day of the Full Court hearing, the observer should be taken to understand something like the following: the discretion given to the AAT had to be exercised within the bounds of the law. To ensure that was done, QYFM was entitled to seek review by the judicial branch. He did so, but without legal representation his application before Justice Kerr lacked any meritorious ground and was accordingly dismissed.

He was then entitled to appeal to a Full Court comprising three Federal Court judges sitting together. He obtained legal representation by a solicitor and counsel in time to file an amended notice of appeal. The grounds in the amended notice of appeal were different to those before Justice Kerr and, if given leave to rely on them, the effect was that the Full Court on appeal would decide for the first time whether the new grounds identified failure by the AAT to decide in accordance with law that this judicial review function to be now performed, in effect, by the Full Court – and we quoted in our written submissions from Plaintiff S157 v The Commonwealth [2003] HCA 2; 211 CLR 476 at paragraph 5 from Chief Justice Gleeson – secures a basic element of the rule of law.

So then, finally, skipping forward to 17 August 2021, the observer would see QYFM’s solicitors received an e-mail at 9.04 am, Australian Western Standard Time, and your Honours can find that in the appellant’s book of further materials at tab 5.

STEWARD J: What page is that?

MR NEKVAPIL: I am sorry, your Honour, it is 45 of the book of further materials. It advised the practitioners, also copying the associates to the other two judges sitting, Justice McKerracher and Justice Griffiths, that:

Justice Bromwich has asked me to advise that his Honour appeared for the Crown in the appellant’s unsuccessful conviction appeal before the Victorian Court of Appeal on 12 August 2014.

And wished to raise the matter with the parties. And then, at 9.43 am, your Honours can see this – sorry, it is right at the end of the appellant’s book of further materials.

GORDON J: I think it is the next page.

MR NEKVAPIL: Yes, thank you, your Honour. Yes, page 46, 9.43 am, Tuesday, 17 August 2021, and at page 2, line 37, the matter was raised, but as to the observer, whose story in a sense finishes at that point – or mostly finishes at that point – the observer with our client would see appear on Microsoft Teams at 9.43 am, the Honourable Justice Bromwich now wearing the robes of his office as a judge of the Federal Court of Australia. We submit that the observer would think that having performed the first role in the Court of Appeal in 2014, his Honour should not have performed that second role.

That is what we say is the relevant salient facts that to which the observer would have regard. I will say something after addressing our primary – the primary substance about the perception recollection issue, but that is where we say the story stops for our incompatibility of roles case, which I will turn to now. We do not, of course, cast any doubt on the unimpeachable judicial experience, ability or attributes of Justice Bromwich, and this case just does not go there at all.

Without seeking to lay down an absolute or abstract rule, we submit that, in this case, the causal connection between the two proceedings is such that the Court could not be seen by the public to be independent with Justice Bromwich sitting as one of its members. As DPP, his Honour performed the prosecutorial function of the Executive in maintaining the conviction obtained by his office, which resulted in the visa cancellation, and as Federal Court judge, he was called on to supervise the legality of the decision by the Executive to not revoke that cancellation.

KIEFEL CJ: How would you identify his Honour’s interest?

MR NEKVAPIL: We would say that his Honour’s interest arose from the active participation in the first proceeding, such that a result of his Honour’s participation in the first proceeding was the conviction which led directly to the second proceeding, being supervision of the only available option for non-removal as a result of the conviction and cancellation.

GLEESON J: Mr Nekvapil, is it an interest in vindicating the successful defence of the appeal?

MR NEKVAPIL: Our submission is that really this case should be approached on the basis of apparent independence as articulated in the joint judgement in Ebner, in particular at paragraphs 60 and 62, and as foreshadowed in paragraph 23 of the judgment in Ebner, such that, although applying the Ebner test, as adapted in Isbester at paragraph 49, it is necessary to identify the interest, the interest arises by reason of the performance of the prior role such that one obtains a conflict of interests by reason of incompatible roles, and it is therefore not necessary, on the second Ebner question, to ask at all about some imputed psychological approach.

I will step back one step, and I will develop these authorities in a moment, but the public is so concerned by the appearance of independence when one comes to a case like this that it is sufficient to have actively performed the role of DPP in connection with a proceeding, the direct statutory consequence of which is the second proceeding. That, in our submission, is the interest and is sufficient to answer the second limb of the test, on the basis that the roles are incompatible.

STEWARD J: Could I ask, I know you said you do not want an absolute rule, but if we change the facts and if, just let us say, Justice Bromwich had appeared at trial in the County Court and there was a plea of guilty, would that be sufficient, on your understanding of the principles, for him not to have sat subsequently?

MR NEKVAPIL: Of course, each case is different.

STEWARD J: Of course.

MR NEKVAPIL: And therefore, there are grey edges. But, if I could just state a proposition and, of course it is going to have grey edges and problems and so on, but we would submit that where the Prosecutor and defendant in the first proceeding are the judge and the party in the second, if the second proceeding has arisen or resulted in any way from the outcome of the first, then the judge must be disqualified for the appearance of independence.

GORDON J: Justice Gageler, at paragraph 63, set out two sentences. Is that, in the sense – on page 157 of 255 Commonwealth Law Reports 135, is that the test that you are propounding?

MR NEKVAPIL: Is that related? I am ‑ ‑ ‑

GORDON J: It is where it says, and I quote:

That is because a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible –

et cetera.

MR NEKVAPIL: Yes.

GORDON J: Preceded by:

Rarely could a fair‑minded observer not think it appropriate to say of a person: “[i]f he is an accuser he must not be a judge”.

MR NEKVAPIL: Yes, precisely, that is paragraph 63. Thank you, your Honour. Precisely. We say that is a way of articulating it. The question, then, comes down to – and we think we would probably join issue on this point – what does it mean by “a related proceeding”? But, we do say, your Honour, that it is – and I will need to develop this a bit – but it is – the purpose in Isbester of the joint reasons for framing the independence incompatibility of roles ground in terms of the Ebner test is not to suggest that the test is functionally the same, but is to demonstrate how impartiality and independence intersect, and it is really that at a certain point, where one is talking about incompatibility of roles, independence just requires disqualification because apprehended impartiality would be inferred.

In R v Abdroikov – and this is set out in paragraph 46 of our written submissions, page 14, footnote 99 – Baroness Hale explained the maxim one ought not be a judge in one’s own cause in terms of the understanding of the modern member of the public of the possibility of unconscious bias. But whether one approaches it in that way, or whether one understands that since antiquity the maxim had an understanding of this aspect of human frailty and structural requirements of independence, the reason for modifying the Ebner test is that the public would just expect independence in certain roles, and, in particular in this case, the role of accuser and party.

EDELMAN J: Put in those terms, your submission is not really a submission about interest, which was the first category that Justice Deane divided apprehended bias up into. Yours is really his third category, is it not, which is disqualification by association.

MR NEKVAPIL: It certainly can be characterised in that way. It could also be characterised as conduct, by reason of the conduct of the role of DPP.

We would submit that, really, the learned Solicitor‑General has demonstrated how this kind of case could be put into any of those four categories potentially. We would submit it just may not be that helpful and we would embrace the observations in paragraphs 23 and 60 of Ebner about – this may be better explained by independence than impartiality, but we do of course seek to present our case in the terms of the modified Ebner test in Isbester at paragraph 49. So, in that sense, if it is to be put as interest, we say the interest arises because of the role of accuser in a related proceeding, but really we say it is a concern for independence. Could I just address your Honour Justice Edelman’s question with a ‑ ‑ ‑

KIEFEL CJ: Of course, you are not talking about actual interest; you are talking about the interest that a reasonable observer would perceive.

MR NEKVAPIL: Exactly, your Honour. We think it is actually used in paragraph 49 in Isbester in the expression “conflict of interest”, and we would submit that it is a conflict of interest in the same way that someone by holding two roles might be said to have a conflict of interest without the need to identify – to articulate something like the logical connection in the second limb of Ebner, so that it is an interest that is inferred from having performed the role of prosecutor in the earlier proceeding.

EDELMAN J: There may then be questions about how much knowledge you imbue the reasonable observer with, because when one is talking about prosecutors or members of the Executive performing the functions of the Crown, traditionally one thinks of those functions as being performed without interest; in other words, being performed neutrally and properly according to the law.

MR NEKVAPIL: Yes, it does, your Honour, and that is a critical point where one needs to create some distance to the public viewpoint. We would submit that the public, however one might refine the characteristics, would perceive a person who has performed the role of the manifestation of the Executive prosecutorial branch as having performed a role that is adverse to the interests of the person in the particular respect.

Now, it does not mean, and we distinguish – just returning to that proposition I made, we distinguish, for example, McCreed v The Queen [2003] WASCA 275; (2003) 27 WAR 554 and R v Garrett (1988) 50 SASR 392 on the basis that we do not submit that the mere fact of having been accuser and defendant in an earlier proceeding and then judge and a party in the later proceeding is sufficient. It is the connection – in this case, as we put, the second proceeding is the fruit of the first proceeding – it is that connection through which results in the sufficient connection and that is, in our submission, consistent with especially when one looks at the decision of the US Supreme Court in Williams v Pennsylvania (2016) 136 S Ct. 1899, and the distinction between the decision of the majority and, in particular, the dissent of Justice Thomas, who criticises the majority on the basis that they have, in effect, applied the maxim as though this were a single case when in fact it was separate cases; we say that is the key point of distinction.

That is why if all you have is accuser/defendant in an earlier proceeding, judge and a party in this proceeding, you will need to go to Ebner and satisfy the second limb of the test. But it is the extension in Isbester – and perhaps if I could just move to that now – of the maxim to a case where there are related proceedings but not, in a formal sense, the same single proceeding that one gets to this category.

So, could I take your Honours to tab 14 in the joint book of authorities, Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243 at page 259, at about point 6. Here, obviously the Chief District Ranger was, in a real sense, interested because he had been the subject of the vulgar words, he participated in the committee that charged, and he was then present for the committee that penalised.

We do really focus in on page 259 of Justice Isaacs’ judgment. His Honour referred there to the two aspects of the maxim with the two Latin expressions, which are sometimes connected – one ought not to be a judge in their own cause, and one cannot be both judge and party – and he framed incompatibility, as distinct from pecuniary interest:

If it is incompatible for the same man to be at once judge and occupy some other position which he really has in the case, then primâ facie he must not act as a judge at all.

Now, a person who is a party to a cause cannot judge the cause because the court would not in fact be, or at least would not appear to be, independent. That is what we take from the joint judgment in Ebner at paragraphs 60 and 62. But then, separately to that very old line of authority from Dr Bonham’s case and City of London v Wood and so on, the law developed the principles of apprehended bias through the series of cases which were cited in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 to explain why the then English position should not be followed, and that test, of course – well, your Honours know that test.

But the two categories inevitably overlapped. That was because in Dimes v Proprietors of the Grand Junction Canal [1852] EngR 789; (1852) 3 HLC 759, Lord Campbell, at page 793, had said that the maxim should extend beyond judge and party, which was its natural home, to apply – and he really was accepting the arguments put by the Solicitor‑General on to this effect, that it should extend to apply to a cause in which the judge has an interest. Of course, the interest there was of the Lord Chancellor having a substantial shareholding in the proprietors. Coming back to that page of Dickason, page 259, Justice Issacs had said:

One disqualification is pecuniary interest. If that exists there is an end of the matter at once –

and that was for, quite a period, understood to be the position – the automatic disqualification position. But in Ebner, the Court placed pecuniary interest into the category requiring apprehended bias evaluation. In doing so, the Court expressly, in paragraphs 59 to 63 of their judgment, preserved the core field with the maxim as requiring disqualification for apparent independence without the need to consider apprehended bias.

In other words, your Honours, we would submit that Ebner may be seen simply as rejecting the extension of the maxim by Lord Campbell in Dimes from party to interest and reallocating pecuniary and other interests to the apprehended bias category, but preserving the incompatibility category identified by Justice Issacs and Dickason. We have shown in the – or we have submitted in the written submissions – and I will not take your Honours to it – how a similar confluence occurred not that long after Ebner, where it was said in England that Pinochet could have been explained, had they had a lower apprehended bias test in those terms, rather than in terms of the extended interest category of the maxim.

So then, your Honours, we come to Isbester v Knox, which is at tab 16[2015] HCA 20; , 255 CLR 135, and relevantly to our case, that raised two issues. The first issue was: did the case fall within the incompatibility category, even though the prosecution in which Ms Hughes instructed was a separate process from the panel in which she subsequently participated? The second was: if it did fall within the incompatibility category, should it result in automatic disqualification, or should the Ebner test be applied, and if so, how? The Court held, in particular at paragraph 42:

It is not realistic to view Ms Hughes’ interest in the matter as coming to an end when the proceedings in the Magistrates’ Court were completed.

And that is, in a sense, the answer that might have been given by the majority in Williams to Justice Thomas that there is obviously a formal quality about when the proceedings starts and finishes, and one could construct from the notional observer’s view point exactly the same problem of substance which occurs in either one or two proceedings.

That is why, in our submission, it is necessary to look to the substance of the connection, which in this case is provided by the direct statutory consequence and flow‑through from the statutory fruits of the conviction, through to the exercise or non‑exercise of the discretion by the Executive, through to then re‑appearing in supervising the legality of that very closely related and consequential matter. Turning to paragraph 49 in Isbester, their Honours said:

The majority reasons in Ebner should not be understood to exclude cases of the kind here in question from the application of the principle by the test there stated. The test directs attention, as a first step in cases where apprehended bias is alleged, to the critical question of the decision‑maker’s interest. The difference in the application of the test is that in cases like the present one that concern incompatibility of roles, once the interest is identified as one which points to a conflict of interest, the connection between that interest and the possibility of deviation from proper decision‑making is obvious.

Clearly, in functional terms, that requires a different decisional process but as ‑ ‑ ‑

GAGELER J: Is that what it is saying?

MR NEKVAPIL: I am sorry, your Honour?

GAGELER J: It seems to me to be applying the Ebner test, it is just easier to apply in some cases than others. I think that is the way I read it.

MR NEKVAPIL: Yes. It may be a question of semantics.

GAGELER J: Well, no, it is a question of whether you apply one test or some modified test. It seems to me, reading paragraph 49 in context with paragraph 47, it is the one test that is relatively easy to apply in the case of what you call incompatibility.

MR NEKVAPIL: Yes. We would accept that and, plainly, that is what it is saying. It is saying even though the expression of paragraphs 59 to 63 in Ebner might suggest it is a different test, this interpretation of that judgment is that you apply the same test, but the second limb just would usually be satisfied. We submit that that is so, and that is why also in Dickason, Justice Isaacs said:

must not act as a judge at all.

Because the risk of impartiality is apparent to the public simply from the fact of their having held that previous role and performed that role in a particular way.

That is why, we submit, you still have to look at the first limb, because you have to see what was actually done in the role. So that in Isbester, it was instructing solicitors, putting together material, going and obtaining a finding of guilt; in Williams, it was signing a memorandum. It is certainly not this case whether – if we did not have Justice Bromwich appearing in the Court of Appeal, it would be a very different case. If it was purely by the existence of having held the two roles, it would be a different case. That is why one needs to still focus on the conduct or performance of the first role.

Once that is understood, and once there is a substantive engagement in the role of accuser vis‑à‑vis the accused who is now a party, then the second limb can be satisfied by – in a sense, one might call it a presumption or an imputation – imputing to the observer a particular perception by reason of having conducted that first role in an active way.

Interestingly, if I could just go for a moment on this point to Stollery v Greyhound Racing Control Board [1972] HCA 53; 128 CLR 509, which is at tab 21, and in the judgment of Justice Barwick, at page 518, his Honour sets out a long quote from Lord Chief Justice Hewart in the Sussex Justices case. Now, that is obviously a different case because it was related to proceedings, but it was not the role of accuser leading to another process like Isbester or Williams. But at the bottom of that quote on that page:

his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction.

We would say it is really that, once you have identified the conduct of the first role and the nature of the second role, you then can infer, by the reason of the need for independence, a perception by the observer. So, as I say, we say that the proposition that I earlier stated, where the prosecutor and defendant in the first proceeding are the judge and the party in the second, if the second proceeding has arisen from the first, the judge must be disqualified, is consistent with Isbester although some of the reasoning in Isbester and, no doubt, the learned Solicitor-General will take your Honours through some of this, there are obviously discussions of all circumstances and one of the circumstances is in that case, there was some commonality between the matters put by Ms Hughes, the council officers, solicitors in the Magistrates’ Court and the matters considered by the panel in fact.

So that is, in a sense, two merits-based decision-making processes with some overlap, and we would accept that that feature is not present in the same way in this case. But another feature which is consistent with this case was that the function of the panel arose under the statute only because of the fruits of the prosecution. And so, we would say, in that regard it is consistent. It is said against us, for example that, well, the conviction and the cancellation is not an issue in the AAT. But of course, that is because it is already crystallised as a result of the first. And so that is a relevant difference, but we say a consistency in terms of the second being the fruit of the first.

In Williams, as I have said – although again there is some overlap in the sense that Chief Justice Castille, when District Attorney, was concerned with the prosecution, and then it was evidence which had been hidden from the prosecution that gave rise to the post‑conviction proceeding, but the point that Justice Thomas made was that there was no evidence that in his role as District Attorney, Chief Justice Castille had had anything to do with the evidence, so that again, we would say that it is consistent with the distinction between the majority and the dissenting opinions in Williams to characterise it as a case where the second arose as a direct consequence of the fruits of the first.

If I could take your Honours to tab 27, which is Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2), [2010] ACTSC 13, and in particular at paragraph 64. This was a case where, in fact, Justice Refshauge had similarly played a role in appeals from Mr Eastman’s criminal matters, but the reasoning of Justice Refshauge is inconsistent with the proposition I have put, but the outcome of the case is consistent, because his Honour did recuse himself, and where, at paragraph 64, his Honour said:

The issue in these proceedings is the conditions under which Mr Eastman is detained. While, of course, he is only detained as a result of the sentence imposed following his conviction, it does seem to me that this is not so closely connected that it would of itself require me to disqualify myself.

We would disagree with that. Thus, a prosecutor who acts for the Crown in criminal proceedings against the litigant may not, upon appointment to the Bench, necessarily be disqualified from dealing with any proceedings about the terms and conditions under which the prisoner is held. Again, without pretending to be categorical, it is obviously not the case your Honours are deciding, we would say, ordinarily, if the imprisonment is the direct consequence of the prior criminal proceeding, the answer would be apparent independence, and the paragraph 49 Isbester approach to role compatibility would require recusal. If we could just go, then, to tab 30 ‑ ‑ ‑

STEWARD J: Just to test the proposition ‑ ‑ ‑

MR NEKVAPIL: Yes, your Honour?

STEWARD J: It seems to me that what you are putting is that there is a sufficient relationship where the first proceeding has some form of causative relationship with the second. Does that mean that if, for example, in this case, the visa had been cancelled for a different reason – for example, giving a misleading statement in the visa application, for example – that there would be no issue with Justice Bromwich sitting, on your test?

MR NEKVAPIL: That case may give rise to an independence case which would be put differently. There may be, at some point, a case where because Justice Bromwich held office as the Prosecutor for the Executive, there is some different kind of independence case. But it certainly would be more into the grey area on the proposition I have put.

STEWARD J: I suppose you can probably put it on the basis, whatever the metes and bounds of the proposition, where there is, here, this causative relationship, that is sufficient.

MR NEKVAPIL: Yes, we would say that. We would say that there are many forms of twilight but this is the day or the night or whichever one it is for our proposition to apply to this case. That is because if one takes one’s view away from the formal boundaries between the proceedings and just looks at the intersection between the roles performed under Director of Public Prosecutions Act, Migration Act, Federal Court of Australia Act, and the relevant facts, there is a continuous sequence which commences with the prosecution and ends with, on his last entitlement to seek review of the consequences, Justice Bromwich sitting on the court, so that once one does not focus too strictly on the boundaries, one ends up with Justice Bromwich, in effect have performed a role in connection with the proceeding.

That is, we say, what Justice Isaacs was getting at where he says something like, in truth, if their true role – or if in truth their role was – and that is why you have to have a test for connection, because otherwise you end up with a test concerned with the impartiality and independence of a Chapter III court that turns on formal distinctions between proceedings.

GLEESON J: Mr Nekvapil, I have two questions. One is if you rely heavily on independence, I am understanding that as independence from the Executive, and it is not obvious to me why then you would confine – or why you would need the connection between these proceedings and the subsequent migration proceedings, why would it not be the case that Justice Bromwich’s lack of independence would apply much more broadly, say, to a tax case involving your client?

The second question is in relation to Justice Gageler’s reasons at paragraph 63 in Isbester, which you, I thought, embraced. Are you able to articulate the frame of mind that a layperson might be expected to develop? I suggested to you that it was an interest in vindicating the successful appeal, but you did not accept that.

MR NEKVAPIL: I will deal with the first and then hopefully I will not have forgotten the second by the time I get to it. But on the first question, what we say is it is certainly not the case on our argument, or it is certainly not our argument, that a person having performed the role of Director of Public Prosecutions could never be appointed as a Federal Court judge, and in that sense it is completely distinct from circumstances where one might look at roles that a Federal Court judge just could not perform simultaneously, for example. Therefore, it must involve a case by case, or a circumstantial, analysis, and the circumstantial analysis will look at the connection in real terms between the role of accuser for the Executive and the role as a member of the judiciary.

Now, a tax case may raise another version of this case if, for example, the taxation consequences arose from the conviction, but there may be, for example, a breach of contract case where QYFM sues someone for breach of contract completely or misleading or deceptive conduct by a corporation and it comes before his Honour, and we certainly would not be saying that that is role incompatibility. That is more like McCreed and Garrett and so on, it is just the only connection is the similarity of players. So, it is about independence, but it is circumstantial.

Your Honour’s second question concerned Justice Gageler’s reasons in paragraph 63 in Knox, and, your Honour, it certainly could be put in terms of vindication. Our submission would be that it was said from Dr Bonham’s Case onwards that a person cannot be a judge in their own cause because of – however you want to put it – natural law, it just was sort of self‑evident, it was explained in various ways in the cases, but it could be put in terms of a perception of an interest in vindication.

We would say that it just becomes a bit artificial, potentially, to try and express a conflict of interest in terms of incompatible roles in terms of a psychological concept. But that is where Baroness Hale referred to a subconscious, or unconscious, form of bias, potentially. It may be explained in that way, that the member of the public would understand that a person, having performed one role, it may have created pathways in their mind, et cetera.

GORDON J: Can I just pick up on that?

MR NEKVAPIL: Yes, your Honour.

GORDON J: If you took your salient facts as paragraphs 2, 3, 4, 5, and 6, and deleted from the second line of paragraph 5: “As the consequence of his conviction and sentence”, is that, in a sense, the submission you have just made? In other words, one has an incompatibility of roles from the hypothetical objective observer is one which gives rise to incompatibility because of the different functions and roles that are there set out in your salient facts, without this causal connection in the way you have identified it?

MR NEKVAPIL: Would we say it is still incompatible without that causal connection?

GORDON J: Yes.

MR NEKVAPIL: Not in the same way.

GORDON J: Not in the same way, but in response to Justice Gleeson, I had thought you had embraced this idea that it was possible to have an incompatibility of roles on these facts ‑ ‑ ‑

MR NEKVAPIL: Yes.

GORDON J: These paragraphs 2 through to 6, in circumstances where one is Prosecutor – indictment issued in the name of Commonwealth DPP, statutory office, then stepping in as a judge in relation to the same man, same person, in relation to particular facts and circumstances?

MR NEKVAPIL: My hesitation about embracing it to that extent, your Honour, is that as the consequences of his conviction in paragraph 5 leads to the connection to what the Executive was doing, which was then the subject of judicial review, and so if I lose the statutory consequence of the conviction, then I very quickly end up in McCreed and Garrett and the first respondent says it has never been the case that purely because you were accuser and defendant in a previous case, you were therefore disqualified without the second limb of Ebner.

EDELMAN J: There may be a very significant question about whether or not McCreed was correctly decided. There is certainly reasoning in paragraph 40, for example, in that case, which comes very close to eliding actual bias with apprehended bias.

MR NEKVAPIL: Yes. If our distinction were problematic for our case, then we would submit that the reasoning in McCreed and also Garrett could be explained in substance on the basis of considerations of expediency, which come through in the judgments, because there is certainly a statement – and if I could just take your Honours to – just excuse me for a moment.

In McCreed, which is tab 32, at paragraph 16 on the third line, referring to the situation in the USA, which of course, because it is a probable constitutional test based on probability of apprehended bias is quite a different test:

in Australia the fact that a defendant in criminal proceedings has previously been prosecuted for a serious criminal offence by the judge who is to preside over his trial on unrelated charges will often be sufficient to result in the judge’s disqualification.

We would say that is perhaps a recognition of the fact that ordinarily it should, but that in the circumstances of this particular case there then follows reasoning why it could be explained as being okay.

GAGELER J: This question of incompatibility needs to be understood in the context of an adversary process where, to the lay observer, what one sees in court is a person holding a statutory office which has certain functions, which include to ensure that those who should go to jail for Commonwealth offences do go to jail and stay there, appearing as counsel, advancing arguments that are adverse to the interests of the individual concerned and easily attributed with a mindset that is set on advancing those interests adverse to that person. The difficulty is when that counsel then turns up as a judge, it may not be obvious to the lay observer that the mind of that counsel can switch to one of impeccable neutrality. That seems to me the kind of problem that we are concerned with.

MR NEKVAPIL: Yes.

GAGELER J: It is the ability for a human, having performed one role, to impeccably perform the other role. It may not be easy to articulate, but that is the kind of problem, and it really goes to human frailty, I think.

MR NEKVAPIL: That is right, and, in our submission, that is why the maxim has existed for such a long time.

GORDON J: It is not just the maxim though, Mr Nekvapil. It is the test. The observer might reasonably apprehend that the judge might not do so.

MR NEKVAPIL: Yes. We would submit that is the point of the reasoning of the joint reasons and your Honour Justice Gageler in Isbester, is that there arises from the performance of the role of accuser a state of affairs where the lay observer is just not going to feel comfortable with it and we would submit that, if one sits for long enough with the cases and the categories from Webb and passing the tests and applying them to the facts, one might arrive at a result where one thinks, okay, maybe this is not too bad, but that would be the consequence, we would submit, of the observer having left the public gallery and come up closer to the Bench, because it is easy for a judge to understand how a person could perform that role and then have no psychological – or no apparent psychological interest, but if one then attributes that same state of mind to the observer, one has not recognised the requisite distance.

EDELMAN J: That seems to me to be a submission that is almost directly opposed to what is said in paragraph 40 in McCreed. In paragraph 40 of McCreed, the Court is saying that as long as you understand the role of the Crown Prosecutor, there was no evidence that the prosecutor in that case did other than fairly and impartially present the case. But they acknowledge that obviously the applicant would not see it that way.

MR NEKVAPIL: Yes. And we say that is the crux of the reasoning in Charisteas, with respect. It was said, look, people will understand this – the communications with the Court and it is a small Bar and so on. Really what that meant is, we understand this.

EDELMAN J: So, to come back to Justice Gordon’s earlier question – I mean, it may not be necessary for you to do so in this case – but as a formulation of principle, the last factum or criterion that you rely upon – which seems to be dependent on the correctness of cases like McCreed – may not be that useful in formulating the overall principle.

MR NEKVAPIL: Yes, your Honour, of course we adopt the smallest principle we need to cover the facts of this case. We do think that there is a point at which one would arrive at a junction where just the fact of having held office, and someone being prosecuted by the DPP, where there is no evidence of personal involvement and then sitting as a judge in a case involving that person would be too tenuous. But somewhere in the middle is the grey line which is the personal conduct of the office gives rise to a perception in the observer that this person cannot be a judge on anything to do with this.

We will come to this a bit more with ground 1 but, of course, this is also a question about the Federal Court of Australia, so that, we would submit, the observer would understand in taking this court with its statute and its constitution – both legal and practical – that it is a court where there is no necessity for a person with those circumstances to sit – which brings me to a point we wish to make about a relevant distinction between a role incompatibility case and an apparent – a more, if I can call it this, garden‑variety factually dependent apprehended bias case – is that a rule precluding performance of incompatible roles to ensure apparent independence of the judiciary does not give rise to the same concern about abuse by mischievous litigants as more subjective evaluative grounds might – because the objective facts will just exist in a small number of cases and, if they do, they are easily ascertained, and easy to avoid.

Now, obviously there would have been inconvenience in avoiding them, but they are not as susceptible to abuse as something like a judge having spoken in a particular way, or asked a line of questions, or given an interlocutory role – those sorts of cases.

KIEFEL CJ: That might be a convenient time for the morning break.

MR NEKVAPIL: Thank you, your Honour.

KIEFEL CJ: The Court will adjourn for 15 minutes.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ: Yes, Mr Nekvapil.

MR NEKVAPIL: Yes. Thank you, your Honours. Your Honours, I had almost finished my argument on ground 2, but if I could just come back to your Honour the Chief Justice’s question earlier about identifying the interest and just try to pick up on some of the questions your Honour has asked me this morning.

KIEFEL CJ: Well, on one view of paragraph 49, the interest is the conflict.

MR NEKVAPIL: Yes. That is certainly how we put it. There have been a number of questions about Justice Gageler’s reasoning in paragraph 63. Depending on where one puts the threshold with the double “might”, there might be a principle of larger or smaller radius. And, we would submit, given the level it is set at in Australia – and the sensitivity, its importance to exercise of judicial power and so on – that the notional observer, properly framed by reference to that function, would be concerned – to the requisite level to support a principle of larger radius, that being, to adopt the language of Justice Gageler in Isbester – that:

a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible –

and we would say that that would be so in particular if the person was the Director of Public Prosecutions and therefore identifiable by the public as holding the personal role of manifesting the prosecutorial branch of the polity. It could be the Commonwealth, it could be a similar thing with the State.

KIEFEL CJ: But it would not be the Director of Public Prosecutions in every case ‑ ‑ ‑

MR NEKVAPIL: No.

KIEFEL CJ: ‑ ‑ ‑ in which the indictment is signed by the Director. It would be where they have participated in the adversarial process as counsel.

MR NEKVAPIL: Yes, whether they have participated. So, as I said, it would not be just the holding of the titular office, but we would say in circumstances where they have participated – that is, have in fact taken up the statutory titular role – then that frame of mind could be attributed, and it might be, as Baroness Hale said, by a subconscious reasoning process, or it might just be a conflict of interest independence of roles type of reasoning. And, if that were the case, then we would submit that McCreed was wrongly decided and decided for purposes of expediency, but wrongly. So that the true principle should have been the judge having actively performed that role – he just should not have sat.

Alternatively, and if I could just go back to McCreed at paragraph 32 and the reasoning of Justice Steytler, at paragraphs 17 and 18. If a principle of that radius is not supported by the relevant threshold, then the threshold would support a narrower principle being one where any connection between the two cases would result in disqualification. In that respect we would refer to paragraph 17 where Justice Steytler, at about the seventh line, gave as, if you like, an evaluative factor – or a factor for evaluation in a multifactorial evaluation:

whether there is any connection between the two cases.

We would say that on the smaller principle it would be an error to think that that is just in the mix and, in fact, that would provide the presumed state of mind, but, in that case, on that narrower principle, the finding at paragraph 18, that:

the offences the subject of the instant trial (sexual offences) bore no relationship to the murder the subject of the prior prosecution.

might allow that case to fall outside of the principle of smaller radius. So, unless there are any further questions on ground 2, that concludes our submissions on that ground.

We come then to ground 1. I did tell your Honours I would say something very briefly about the perception and recollection point. We accept what is the point made by the Minister in paragraph 40 of the written submissions being that, in effect, the authority of the Full Court to hear and determine the matter either was or was not affected by Justice Bromwich’s prior role and therefore, the question is apt to be determined as soon as the Full Court was constituted to include Justice Bromwich so that his reasons, in a sense, are irrelevant, with respect.

GORDON J: That is consistent with authority.

MR NEKVAPIL: Yes. That is Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 at paragraph 68. However, we submit and accept that it would ordinarily be appropriate for the judge affected to provide an account of the circumstances because there is obviously no process for affidavits or any other evidence-gathering.

It is therefore appropriate, and it is recognised around the world, giving your Honours some references to practice notes in the superior New Zealand courts about a memo and so on, we are not suggesting it needs to be formal, but there is recognition that it is appropriate because that would permit the parties to consider whether they seek to take or waive the point. It would provide a party wishing to take the point with the salient facts for the purpose of putting submissions and, in the case of a multi-member panel, would provide the other members of the panel with the salient facts.

We therefore accept that the account given by Justice Bromwich of relevant facts, as opposed to the reasoning, does form part of the basis on which this Court, on appeal, could make its decision. However, for the reasons set out in paragraphs 59 and 60 of our written submissions, we would submit that your Honours would place no or very little weight on those recollections because they do not really intersect with the way that we are presenting the incompatibility case.

Moving then to ground 1, we content that ground 1 should be answered in the appellant’s favour simply by reference to the terms of the statute by which Parliament conferred jurisdiction the Federal Court of Australia Act 1976, and the duty of a court whose authority to decide is challenged, to determine that challenge.

Could I ask your Honours to go briefly to tab 4, which is the Federal Court of Australia Act 1976? If I could start at section 14, which is at page 79 of the joint book of authorities, page 14 of the statute, “Manner in which Court may be constituted”, subsection (2):

A Full Court consists of 3 or more judges sitting together –

and we would say that subsection (3) is not directly relevant to the question presented by this case. And then, I think that the Commonwealth referred to section 15(1AA), which would include the Chief Justice assigning the judges two cases. But we pick it up that section 24(1)(a):

Subject to this section and to any other Act, whether passed . . . the Court has jurisdiction to hear and determine:

(a) appeals from judgments of the Court constituted by a single judge –

which was this case. And then section 25(1):

The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court.

In the remainder of section 25, there is a number of instances where Parliament has authorised the Court on an appeal to be constituted by a single judge, but none of those are relevant to the present circumstance so that the statute required the appeal from the judgment of Justice Kerr to be heard and decided by a Full Court – that is “3 or more judges sitting together”, the question whether Justice Bromwich’s role affected the authority was one that affected the authority of the Full Court to hear and determine the proceeding, and that is because only the Full Court was authorised to hear and determine the appeal. And, taken together with the principle that as a Court exercising the judicial power of the Commonwealth, the Court – constituted by the Full Court – was required to be and appeared to be independent and impartial.

And at paragraph 19, footnote 46 of our written submissions, we have given references to the joint judgment in North Australian Aboriginal Legal Aid Service v Bradley, affirming their observations by Justice Gaudron and Justice Kirby in Ebner for that proposition. Accordingly, an assertion that the Full Court lacked authority to hear and determine the appeal as presently constituted was a challenge that the Full Court had a duty to determine. And there, we have given reference in paragraph 27 of our written submissions, footnote 62 to Re Nash (No 2) [2017] HCA 52; [2017] 263 CLR 443, which is for the general proposition of the first duty.

But we have also handed up one authority to your Honours, I hope at the start of the hearing, being R v Federal Court of Australia; Ex parte the Western Australian National Football League. We rely on this case. If I could just take your Honours directly there for what was said by Justice Gibbs. His Honour’s judgment commenced at page 211, and at page 215 his Honour said at about point 6:

If the proceedings in the Federal Court had not been interrupted by the present application for prohibition, that Court would have been obliged to decide that question for the purpose of determining whether it had jurisdiction.

Then quoted Justice Devlin:

“When, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to their jurisdiction, the tribunal have to make up their minds whether they will act or not, and for that purpose to arrive at some decision –

We think this case is perhaps analogically helpful because here, if your Honours look to the headnote at page 191, what occurred was that:

The player sued –

various incorporated associations:

in the Federal Court of Australia, alleging that they were trading corporations and that their actions in relation to –

certain conduct:

were breaches of s. 45 (2) of the Trade Practices Act.

and sought injunctions. Two of the football associations then sought:

prohibition in the High Court to prevent the Federal Court from proceeding . . . upon the grounds that the Court had no jurisdiction to make the orders because neither of them was a trading corporation within s. 51 (xx).

Your Honours see that the holding was that they were trading corporations, but because there was a discretion to grant prohibition there was a discussion of, well, should it go back to the Federal Court, or should the Federal Court have been allowed to decide before coming to this Court to seek prohibition, and your Honours see per curiam the Federal Court of Australia has authority to decide, though not conclusively, whether a controversy lies within a jurisdiction.

EDELMAN J: The authority that a Full Court has to decide as a court its own jurisdiction is not inconsistent with the authority that an individual member of that court might have to decide their jurisdiction. In other words, this submission that you are making is not inconsistent with the possibility that an application would be made to one member about whom it is said there is an apprehension of bias, and if that member chose not to recuse themselves the application could, of course, be renewed or instigated by the other members of the court to determine the court’s jurisdiction. But your submission does not exclude the possibility, at least at the first stage, of the individual determining whether or not they have jurisdiction.

MR NEKVAPIL: It certainly does not preclude – and this is, I will come to in a moment, part of our response to the scenarios put by the Minister – it does not preclude a procedure whereby either before the parties know anything about it or at the time of listing, for example, or listing decisions, before the judges come to the Bench, or even once the judges come to the Bench of an individual judge balancing their own duties as a judge and forming the view, my ordinary duty to sit is, in this case, overwhelmed or disapplied by my duty to not sit in certain circumstances.

So, that is a matter for the duty pertaining to each judge individually on the Federal Court, but what we say is where an objection is taken and there is a question about – and the judge does not say, yes, having heard that, I am not going to sit, then the question affects the authority of the Full Court to continue to sit and hear, and is therefore a challenge to authority in the same way as if a party said there is no matter – or the purported power to decide this matter is not within the legislative power of the Commonwealth.

KIEFEL CJ: I take it that your point, whether one regards it as an objection or an application to the court, it is made to the court as a whole. It is just that you say the individual judge to whom the objection is directed, or the application concerns, takes a particular role at the outset of the hearing to perhaps frame the facts and the perspective both for the parties on the record and for the other members of the court.

MR NEKVAPIL: Exactly. That is part of the convention, but it is also necessary because otherwise there is no adversarial process and therefore there is no other way of the parties obtaining the facts or the other judges obtaining the facts. I have referred already to the New Zealand practice notes which formalise it with the judge preparing a memo, the memo goes to the parties and the other judges and there is a formalised process. It need not be so formal but it would require, in our submission, at least for the judge to disclose facts considered to be relevant and really to make a full disclosure in order that the judges have the material and ‑ ‑ ‑

GORDON J: The process that you are outlining has I think, as I understand it the way you put it, three advantages. So the court is sitting as the court constituted to hear the substantive matter which is the subject of the challenge itself, so the three are sitting. Then, in terms of independence, impartiality and transparency, all three judges hear the exchange between the judge who is the subject of the application and counsel in open court available on the public record. Is that the way you put it?

MR NEKVAPIL: Yes, those are certainly benefits.

GORDON J: Then if at the end of that application the judge refused to recuse himself or herself, does that then permit the remaining judges to say, well, we are not happy that we have got jurisdiction notwithstanding the view formed by Judge X?

MR NEKVAPIL: We would submit slightly differently on that last step. We would submit that, unless the judge in performance of their personal judicial duty, if I can put it that way – I know it is not personal, but the duty of each judge – concludes that, this is not a matter on which I should sit, whether because of a strict application of the test or whether because of the kind of precautionary analysis referred to in Ebner, if that does not occur then we would say simply as a result of the statute and the duty to decide that it must be decided by the Full Court of the Federal Court.

GORDON J: No, I am putting a different proposition to you.

MR NEKVAPIL: I am sorry, your Honour.

GORDON J: I am suggesting to you that if the judge decides not to recuse themselves, then is it a matter for the other two judges to say, well, in the circumstances in the interests of impartiality, independence and otherwise, including transparency, we are not satisfied that we are properly constituted.

MR NEKVAPIL: I understand, your Honour. That would arise if the procedure adopted is one where the judge whose circumstances give rise to the question gives an initial position which the ‑ ‑ ‑

GORDON J: Well, they would have to at the end of the application, would they not, on your theory, because otherwise we have problems – or at least perceptions of transparency with difficulties.

EDELMAN J: And as a matter of practicality, it is impossible, really, that they would not be giving a position, because if they had decided to recuse themselves, then there would be no continuation of this process.

MR NEKVAPIL: I think that is right. We submit that is correct. Of course, you need the opportunity for the judge to say, I am not sitting, and therefore that would be the end of the matter without it. But we would submit that if they do not form that view, they do not then need to give reasons ‑ ‑ ‑

GORDON J: That is the whole point of the process. They do not give reasons because the reasons are not relevant to the objective observer.

MR NEKVAPIL: No. Precisely.

GORDON J: The benefit of what you are propounding, as I understand your argument, is because the other two judges get to hear exactly what the objective, independent observer would get to hear, or see, or read.

MR NEKVAPIL: Precisely. Yes, your Honour. It may be in terms of the statute that section 14(3) would provide a pathway whereby, in those circumstances, the judge whose circumstances gave rise to the issue would be unable to continue, for the purpose of that part of the proceeding. It is a bit of a strange construction, but otherwise we would submit that it should be a decision made by all three judges in order to comply with the statute and it being the duty of the Full Court to sit.

STEWARD J: Just to test that proposition, if the judge who is the subject of the application, having made disclosure of relevant facts in open court, then says, I decide not to recuse, is it the decision of the other two judges, then, to decide whether they have a properly constituted court, or is it a decision of all three?

MR NEKVAPIL: We would submit ‑ ‑ ‑

STEWARD J: Given that he already made his decision – one of them has.

MR NEKVAPIL: Yes, they have decided not to recuse, but our primary submission is that if they decide not to recuse, they would then be one of the judges sitting now. As a matter of policy, Sir Anthony Mason, in his article, identified good reason why it should be the other judges, and we certainly accept those policy reasons.

GORDON J: There may not the policy reasons, Mr Nekvapil. There may actually be questions about the jurisdiction of the court, and those remaining two judges forming a view themselves, having heard the views expressed by the judge, the subject of the application, and saying, I am not satisfied that this court is properly constituted. I cannot think of many judges, who, thinking that, would proceed to hear a matter.

MR NEKVAPIL: Your Honour, we certainly embrace that last proposition. We would say that some of these scenarios which are put forward are, with respect, not realistic propositions in the sense that, if a Full Court ever decided – if two other judges decided that the circumstances of the other judge was such that the Full Court as constituted could not sit, then there is no realistic prospect of the judge to whom the circumstances pertained seeking to sit in any event, despite a decision of the Full Court that it cannot sit as constituted.

GAGELER J: Well, you have an application made to the Full Court, the Full Court rules on that application, makes an order disposing of it, one way or the other, and that it is it. Everybody has to abide by that.

MR NEKVAPIL: Yes, that is right. That is the law and therefore a sense of the individual judge of their duties in the circumstance would give way to the position at law, as determined by the Full Court, required to sit by a Parliament.

GAGELER J: And the order that is made by the court on the application, one way or the other, could be the subject of further proceedings.

MR NEKVAPIL: Precisely. In this case, that is precisely so. I should make it very clear that our case turns on the construction of the Federal Court of Australia Act and its particular circumstances, including three members of – from a large pool – and so, we do not seek to make arguments in any way that would go to other intermediate appellate courts or this Court which could give rise to quite different questions of construction and perhaps constitutional matters.

We submit, as we have in paragraph 16 of our reply, that it is incongruous to simultaneously accept – as the first respondent correctly does in our submission at paragraph 44 – that the authority of the Full Court is affected if role incompatibility exists for one of its members, while at the same time contending that only that one member should determine whether the authority of the Full Court is affected.

GAGELER J: What jurisdiction would that member be exercising?

MR NEKVAPIL: That is the way we put it, that underpinning – or a presumption on which each of the scenarios set out from paragraph 49 of the Minister’s written submissions – a premise to each of those scenarios is that each individual judge is the locus of authority. But we would submit that, in circumstances where the Court is sitting in bank – in a panel – as required by section 14(2), the individual judge has their judicial role and duty but the Court is constituted by the Full Court. Therefore, there is no reason – once one appreciates that Parliament has required the Full Court to perform the function of the court, it is the Full Court’s authority to do so that is under challenge, then the Full Court simply determines the question of its authority as it is empowered and obliged to do and the individual judges have no relevant statutory function, if I can put it that way.

EDELMAN J: It may be a fine point, but I think that the assumption that you are making – particularly in relation to section 14 – is that a decision as to whether or not a court has jurisdiction is an exercise of jurisdiction.

MR NEKVAPIL: That is a question, your Honour, and that is why we couple with section 14 the duty of the Tribunal whose authority is challenged to decide. It is obviously not, in deciding that matter, determining an appeal. The statute is silent on how it should be constituted to deal with an apprehended bias, which is unlike the US, where there is – as Sir Anthony Mason in the article points out – a statutory provision which has crystallised the practice of the individual judge deciding.

The Federal Court of Australia Act just does not deal with it expressly. But what we say is because – take this case – this Full Court of these three judges is assembled to sit and start to hear the matter, and the party says, you cannot hear the matter, because it is the authority of the Full Court which is impugned, not an individual judge, it therefore becomes a duty of the Full Court to decide, because no individual judge has any relevant jurisdiction that is affected.

KIEFEL CJ: What do you say to the point made against you that this is a matter for law reform, rather than for judicial pronouncement as to the process which should be undertaken?

MR NEKVAPIL: What we say is that all of the policy considerations which we have given your Honours – I think 11 documents, including the Law Reform Commission articles, chapters, and so on – were there something in all of that policy discussion which provided a compelling reason why one would not approach the Federal Court of Australia Act and the duty of a court to decide a challenge to its jurisdiction in the way we have just outlined, then one might be concerned and look to see whether that was the proper legal outcome, conclusion.

What we would submit is that it is sufficient, in our submission, to look at the compelling arguments advanced by Sir Anthony Mason as to why – and attaching that just to the Federal Court – why it would be appropriate as a matter of policy for the Full Court to decide to rebut any compelling policy reason to adopt a different legal conclusion. We would accept that if your Honours were to reject our argument, and say, no, I conclude this is a matter of procedure, discretion, anything like that, then we would accept your Honours may take the view that it is a matter for each court to decide.

We would note that, unlike in cases like ACF v Commonwealth and Bateman’s Bay where, plainly, the Law Reform Commission was looking at a matter that was for the legislature, in this case the Law Reform Commission itself has said, at least in respect of this Full Court question – multi‑member Bench question – it is probably not a matter for the legislature. I mean, it is a matter the legislature probably could deal with in some respects and it is a matter courts could deal with by practice notes or rules or what‑have‑you. So that, if your Honours were against us and thought it was a matter of practice and procedure, then it is really – in our submission, your Honours would do what was considered appropriate, which may be to leave it to each court to develop its own policy response.

Our submission is that the legal conclusion must be that it is a matter for the Full Court of the Federal Court of Australia to decide and that to do otherwise results in an incongruity between where you have an individual judge with no apparent jurisdiction deciding a question that affects the authority of the Full Court which then has to go on and hear and determine the matter and wait until, if special leave be granted, it finds out the result.

EDELMAN J: It is not impossible, and in fact has occurred, that appeals will be presented before a court which raise threshold jurisdictional issues. Putting aside whether the jurisdictional issue is one about recusal – it may be a jurisdictional issue about many, many other things – the court may be split as to whether or not the jurisdictional issue is satisfied. One member of the court may be of the view that there is no jurisdiction. Is the effect of your submission that that one member of the court in reasons needs to say, well, there is no jurisdiction, but then go on to decide the appeal on the basis that there is jurisdiction if a majority of the court thinks there is jurisdiction?

MR NEKVAPIL: Yes, it is, your Honour, because that, in our submission, is just the consequence of recognising that the Federal Court of Australia is constituted by the Full Court which decides the question by a majority. So take the Football Case, if rather than going to the High Court to seek prohibition, Mr Merkel had come to the Federal Court and said – and let us say it was on appeal by then – your Honours do not have jurisdiction, you might have had two judges saying, we do, and one saying, we do not. The one who said, we do not, it is not a trading corporation – as at least one member of the High Court did – they would just have to go on and sit on the case because the decision of the Federal Court of Australia was that, we have jurisdiction.

EDELMAN J: And circumstances where that has not occurred, at least the judges that have failed to do that have been in error, including in this Court?

MR NEKVAPIL: Not including in this Court on our argument, because we do say – our argument proceeds from the Federal Court of Australia Act and its terms, constitutional context and so on. So, we do not make any submission. One point with which we agree, which is made by the Minister – the Minister refers to, I think, an observation of the Supreme Court of Canada about nine judges sitting and it may be that different circumstances pertain to the rotten apple question, for example, or to the circumstance that there are only seven justices and so on. So there are a whole range of different questions and your Honours see that in all of the articles and so on. This Court is dealt with as a separate problem and we would submit that your Honours do not need to decide anything about this Court, which raises different problems.

Otherwise, our submission is that, yes, the individual judge – as a matter of legal principle, it is no different for someone to say this Court lacks jurisdiction because these are not trading corporations, or this Court lacks jurisdiction because of Ebner through Isbester. And that is particularly so, given that the test is an objective one. So, in fact, there should be no reason in legal principle why it would need to be decided any differently.

Can I just finally, on this ground – because I think I have exceeded my time – address briefly the scenarios that are set out in the respondent’s written submissions at paragraphs 51, 52 and 53. Scenario 1 is:

a three‑member court hears a disqualification application regarding Judge A. Judges B and C consider that Judge A is disqualified . . . A disagrees –

What we submit is that this is really the answer I just gave your answer your Honour Justice Edelman. The Full Court, having determined that it is not authorised to continue to hear an appeal with one of its members sitting, there can be no realistic question of the judge insisting that they sit, the reality is the court would simply be reconstituted either completely or in that respect, and that may depend how much has occurred. A judge does not have a duty to sit as a member of a panel if the court has determined that the court so constituted has no authority to sit.

As to paragraphs 52 and 53, we submit that these scenarios are very unlikely to occur. In fact, if a judge took the view that she was precluded from sitting, including by a precautionary approach of the kind discussed in Ebner, she would inform her colleagues of this view, and the Full Court would adjourn to reconstitute. We say that is what would happen in reality. We submit it is unrealistic to think a judge would be compelled to sit in circumstances where she had formed the view that to do so would affect the independence or impartiality of the court. And there is nothing in the Federal Court of Australia Act that requires the Full Court to sit as initially constituted.

KIEFEL CJ: Well, you say could not be compelled by the other members of the Court to continue. It may be another question whether or not a judge could be compelled by this Court.

MR NEKVAPIL: Yes, your Honour. Yes, quite so. But, if the circumstances of these is the judge says, I do not think I can see – the other judges – well, it really is a problem ‑ ‑ ‑

KIEFEL CJ: It is almost beyond comprehension that other judges could take that role anyway.

MR NEKVAPIL: Yes. But, really, that is our primary submission. It is an unrealistic scenario.

GORDON J: So we have driven back to the point I put to you. It is really the case where someone says, I do not wish to recuse myself, there is no grounds of it, and the other two judges express a doubt in circumstances where they are concerned about not having jurisdiction, notwithstanding the view formed by Judge A.

MR NEKVAPIL: Yes.

GORDON J: That is really the only scenario that is of consequence.

MR NEKVAPIL: That is the only scenario, but even that – I mean, we would submit that it would be fairly obvious if two Federal Court judges have formed the view – even a preliminary view – that the circumstances mean one should not sit, that one would form ‑ ‑ ‑

GORDON J: Reconstitute.

MR NEKVAPIL: And the individual judge would think, okay, well, I have got my own perception, but two of my colleagues have formed a different perception, and so probably the notional observer is going to form that perception.

Unless there are any other questions from your Honours, those are our submissions.

KIEFEL CJ: Yes, thank you. Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, this appeal is the product of a practical problem that occurred on the morning of the hearing in the Full Court. It is apparent that Justice Bromwich was reading the appeal book that morning – you see this from his reasons at paragraph 56 – and he realised on perusing the appeal book, he saw his name as council who had appeared in the Victorian Court of Appeal some seven years earlier.

He immediately had his associate advise the parties to this effect, and that prompted the disqualification application that was made. That disqualification application bore no resemblance to the arguments that your Honours have heard today. It was – I think it is fair to say – an extremely weak, half‑hearted application. Council who made it said, repeatedly, that it was being done on instructions just to put it on the record. It was put on the basis of knowledge – extraneous knowledge somehow arising from the past involvement in the criminal proceeding. The Minister opposed the application. There was nothing said about incompatibility arising by reason of Justice Bromwich’s past role as the DPP. You can see all of that – I will not take your Honours to it, but you can see it – you have the transcript of the relevant part of the argument in the appellant’s book of further materials, from the bottom of page 47 through to page 49. It does not take long.

I do not assert any prejudice from the fact that the submission now put is put on a different basis to the way that it was put to his Honour Justice Bromwich – although it does have some, perhaps minor, ramifications for the factual record, given the way the appellant now puts the case. But I start here to emphasise that Justice Bromwich was placed in a difficult position by the events that played out that morning because, obviously, there is no reason to think that his Honour had any personal desire to hear yet another migration appeal against the non‑revocation of a visa cancellation decision.

The easy thing for his Honour to do would have been simply to recuse himself from the sitting, but he was confronted with a very weak application. If he gave effect to that very weak application, it would almost certainly have meant that the appeal could not have proceeded, because the Act, as my friend points out, requires a Full Court to be constituted by three judges. If he did that, then there would have been the unnecessary waste of costs of the parties, disruption to the business of the court, wasting the time of his colleagues, all of which are the very things that this Court has explained, in its authorities, why judges have a duty to sit unless there is a reasonable apprehension of bias or a real doubt in that regard.

So, his Honour had to balance, had to try to walk the tightrope, between whether he should discharge the duty to sit if he thought that the application that had made to him was not strong enough to warrant recusal with all the disruption and cost that that entails, or to proceed. His Honour was totally alive to that. So, if your Honours could go to the core appeal book on page 157, you will see his Honour there refers in paragraph 58 in Ebner. He sets out ‑ ‑ ‑

GORDON J: Should we be looking at these reasons for decision consistent with authority?

MR DONAGHUE: Your Honour, in my submission – and I understood Mr Nekvapil to accept that you were entitled – that there was nothing wrong with his Honour having done is – ultimately, of course, the question is one for your Honours to resolve, but ‑ ‑ ‑

GORDON J: So are we not limited on that line of authority to what happened in the transcript?

MR DONAGHUE: Your Honour, I am not sure that the authorities do limit you in that way, but I do not deny that possibility. I accept that there is a limited role for the judgments. I did not understand our friends to be suggesting that there was a problem here. But, in the end, your Honour, I do not need to detain your Honours on this if there is a question there.

My point is – and I can make it by reference to Ebner itself, if your Honours could take up Ebner, which is in volume 3, tab 15, paragraphs 19 to 20. The Court has explained – and this is in terms consistent with an explanation Justice Mason gave in Re JRL in 1986, it is not a new principle – in paragraph 19:

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause . . . objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing –

So while the test is the double might, a judge assigned to hear a case in accordance with the practices of the court, as Justice Bromwich was, had a duty to sit unless he was persuaded otherwise. As you know, they had your Honour Justice Gordon and Justice Nettle’s observations in CNY17 ringing in his ears, that that is not a conclusion that one reaches lightly. It would have been quite wrong for his Honour to have formed just an impressionistic judgment that, in some respect, it looked bad that because he had been counsel in a criminal appeal seven years ago he should not sit.

Your Honours have explained, including in Ebner at paragraph 8, that you do not apply the relevant principles that way. There needs to be careful specific analysis: step 1, what is the basis for saying that I, Justice Bromwich, in this scenario, might decide the case other than on its legal and factual merits, and, step 2, what is the logical connection between that matter and the feared deviation. So, his Honour had to do the analysis. Now, obviously because the application was put on a completely different basis, he had no opportunity to do that.

But, in my submission, looking back at the situation that his Honour then confronted, what is called for in this Court is that deliberate, careful analysis of what is the interest and then what is the logical connection. With great respect to our friends, they really have not done that. They have instead sought, by reference to this notion of incompatibility, to invite your Honours to adopt something that looks a lot like a per se rule that says if you have acted in proceeding 1 and there is any connection between proceeding 1 and proceeding 2, then you are out.

That, with respect, is completely inconsistent with Ebner and Isbester. Our friends rely on Isbester to support that kind of incompatibility approach and I am going to take your Honours to Isbester hopefully fairly efficiently but in some detail to demonstrate that it is totally inconsistent with that – that Isbester requires an application of the two steps in Ebner. Indeed, your Honour Justice Gageler put that to my friend at one point and I understood him to accept it, although there was still, both before and after that answer, some submissions to the effect that incompatibility was special in some way.

In my submission, it is special only in this sense that, if you can actually show a conflict of interest, then it is not that hard to do step 2 of Ebner, but that is because of the work that is done in the analysis in a case of that kind at step 1. It does not mean you do not have to identify a conflict between the judges’ interests and their duty to impartially decide a dispute. It just means if you do identify a conflict of interest that way, then the result will ordinarily follow.

Can I develop that by reference to Isbester v Knox, which is in volume 3, tab 16 – it is [2015] HCA 20; (2015) 255 CLR 135. In order to understand what is decided in this case, it is necessary to emphasise the facts, which I will do briefly. Your Honours no doubt recall that this is a case where the same counsel officer was personally involved – not formal involvement – in both obtaining a conviction in the Magistrates’ Court as the person who preferred the charges and instructed the solicitors and then subsequently is serving on an administrative panel that recommended that her dog be destroyed.

At paragraph 3 in the joint reasons of Chief Justice Kiefel and Justices Bell, Keane and Nettle – sorry, I think your Honour the Chief Justice was not the Chief Justice at the time – which I will call the plurality reasons – at the end of paragraph 3, you can see at the top of page 142, there had been an incident in which in August 2012:

two of the appellant’s dogs were involved in an attack upon another dog –

and in the course of that, a person:

sustained a wound to her finger.

That circumstance caused Ms Hughes, in paragraph 4, to direct that an investigation be undertaken:

she spoke with the complainant herself. She determined that six charges should be laid with respect to that attack, arranged for charges and summonses to be drafted and signed some of the charges . . . as informant.

So, we have a high level of personal involvement in the preferring of criminal charges and those charges then led to guilty pleas, which you see at the end of paragraph 5. Then, Ms Hughes could have sought an order for the destruction of the dog as part of those criminal proceedings in the Magistrates’ Court, but she did not. She decided instead, at the end of paragraph 5, to proceed by a panel hearing. The process to commence that panel hearing occurred, as you see at the start of paragraph 6, the day after the guilty pleas.

So, we have not only the personal involvement in the prosecution but the proximity between the two proceedings in question. They immediately follow one after the other and again, Ms Hughes is the moving force in the Magistrates’ Court. She drafts the letter advising that it is open to the Council to consider destruction and inviting him to the hearing. The hearing occurred about two weeks later, which you see from paragraph 7. It was comprised, you will see in paragraph 8, of a panel, one member of whom was Ms Hughes. The evidence before the panel, you see in paragraph 9, from about four lines down:

included the briefs of evidence which had been prepared for the Magistrates’ Court . . . and Ms Hughes’ notes of the hearing in the Magistrates’ Court . . . which included comments made by the Magistrate which were adverse to the appellant.

And in paragraph 10 it was accepted by Ms Hughes that:

she played a major role in that panel process.

Including preparing the draft reasons. So, for everything that your Honours then see in the legal principles we come to, the factual context was a person who was involved both as informant and the moving force behind the criminal charges and as the moving force behind the administrative proceeding relating to the destruction of the dog, one immediately following the other, and both being, if I can call them this, merits-based processes. That is, Ms Hughes was a merits decision-maker.

I emphasise that to draw a contrast that I will develop later between Justice Bromwich’s role which, as counsel on the criminal appeal, was a role that occurred only after. Not only had charges been laid, but they had resulted in conviction before the jury. So, he was involved at a point where he could not have the moving force behind the conviction because the conviction had happened. And at the stage of the Federal Court, and this is something that has received almost no emphasis from our friends, but if one focuses attention on the question, what was going to cause a deviation by Justice Bromwich from the faithful discharge of his judicial duty, that duty was about whether the Administrative Appeals Tribunal had exceeded the legal limits of its authority in deciding whether there was another reason why the appellant should keep his visa.

It was, in subject matter terms, obviously not a merits decision‑making role. He was only concerned with policing the lawful limits of power and it was the lawful limits of an exercise of power far removed from the subject matter of the criminal offence. So, there is just factually no comparison between what was happening in Isbester and what was at issue here. Now, in terms of the legal principles, could your Honours start at paragraph 20, where the Court makes the important point that:

whether a fair-minded lay observer might reasonably apprehend a lack of impartiality . . . is largely a factual –

question. We are no longer in this area of the law concerned with automatic disqualification rules. The facts loom large. At paragraph 21, the two steps in Ebner are identified, and from four lines down, it is said:

Where is it said that a decision‑maker has an “interest” in litigation, the nature of that interest must be spelled out.

That is a point that is emphasised again when we come to the critical paragraph at 49. Is this a case that is about interests? Yes. You see that from paragraph 23, and then even more clearly, paragraph 24. I do not need to read 23, but it emphasises the extent. Paragraph 23 is important insofar as it emphasises the extent to which the hypothetical fair‑minded observer is taken to be aware of the nature of the decision and the context in which it has been made.

That there is focusing on the nature of the decision to be made by Justice Bromwich in the Federal Court. That is, a judicial review limit, legal limits of the Tribunal’s power. That is what the hypothetical observer knows; it is not all the detailed information about how section 23V of the Crimes Act works or the matters back in the criminal proceeding. Then, at 24, the Court distinguishes a few prior authorities as cases about pre‑judgment, and emphasises that in the last few lines, that in:

a case such as the present, where the essential question concerns incompatibility of roles, or a conflict of interest –

which the plurality clearly used as interchangeable expressions, so this is a case, as the appellant puts it here; Isbester is a case as the appellant says it is also true here, of an incompatibility of roles, and what the Court goes on to explain is how you address an incompatibility of roles or a conflict of interest case. If your Honours would jump on a few pages to paragraph 33, one of the earlier authorities – McGovern – is distinguished as a pre‑judgment case. Then, in the last three lines of that paragraph, it said:

The question here is whether it might reasonably be apprehended that a person in her position would have an interest in the decision which could affect her proper decision‑making.

Then, at 34 – and this is one of the key paragraphs in the plurality reasons:

The interest which the appellant alleges existed in this case is akin to that which a person bringing charges –

Which was, of course, the case factually there:

whether as a prosecutor or other accuser, might be expected to have in the outcome of the hearing of those charges. It is generally expected that a person in this position may have an interest which would conflict with the objectivity required of a person deciding the charges and any consequential matters.

So, it is not that you have been a prosecutor, ever, of the person in question. That is not the interest that was being identified in this case. The interest that was identified by the plurality was an interest that the person who decides to bring the charges might be thought to have in the way those charges are resolved – that is, were they justified in their personal decision that charges should be laid against a particular person or in what the plurality identify as consequential matters, which your Honour the Chief Justice in argument – and I think a little later in the case – gave an example of it as penalty proceedings which were connected with, or a penalty being imposed in connection with the allegation.

But when, as was debated a little this morning, there were questions raised as to, does there need to be a relationship between the earlier prosecutorial proceeding and the later proceeding, in our submission the answer is yes. Paragraph 34 of Isbester identifies a connection, and it identifies the interest in much narrower terms than simply having served as a prosecutor.

Ms Hughes was a person who the Court concluded did have an interest in the outcome of the charges she had formulated and she had brought as informant in the court below, but of course nothing equivalent can be said of Justice Bromwich. Moving on to paragraph 39 ‑ ‑ ‑

EDELMAN J: So you read paragraph 34 as stating a general test requiring a connection in every case?

MR DONAGHUE: Your Honour, I read it with 34. The end of 34 is saying the question is, would it reasonably be apprehended that the person have an interest? Then one needs to answer the question, spell it out, as was said earlier in 21, how do you spell out the interest? One possible answer to how you spell out the interest is you say, if I had formulated a charge, I have an interest in whether that charge is proved or made good. You might be able to identify the interest in some other way, and Justice Gleeson asked the question, is it vindicating your role on the appeal? That would be another possibility. But you need to engage in that analysis and to say what the interest is. It is not enough to just say, well, you were the Prosecutor, therefore.

Going on to paragraph 39, the plurality explained that with respect to the Magistrates’ Court, Ms Hughes’ position was analogous to the moving party in Dickason and Stollery. So, she had a similar interest in the outcome of the charges. So that is how the interest is identified at step 1 – can she vindicate her decision to prosecute? But the plurality then explain that does not answer the question here as to whether it could be reasonably apprehended that Ms Hughes also maintained an interest in the outcome of the decision under 84P. That is the second decision.

So, the fact that Ms Hughes had an interest in the decision at the prosecutorial stage did not answer the question of whether she had an interest in the second proceeding. The council endeavoured – through me, I must confess, but unsuccessfully – to separate the two stages of these procedures and to say, well, there are two proceedings in issue and the fact that Ms Hughes had an interest as a prosecutor in step 1 did not show that she had an interest in the proceeding at step 2, and you see that argument recounted as paragraph 40 and the focus on two stages.

The Court says no, and interestingly it does so because it characterised what was happening as really two stages in what are referred to referred to repeatedly in paragraphs 42 and 43 as “the matter”, that is, the Court was viewing this as a single process, “the matter”, that had first the Magistrates’ Court component and, second, the destruction of the dog administrative component. So, in 41 the Court accepts that “the question for the Panel was different” from the Magistrates’ Court question:

It may be accepted that different questions are raised in the penalty proceedings.

But then in the second half of paragraph 41, the overlap is emphasised again:

it is also to be expected that much of the evidence relating to the past offence will also be relevant to penalty and this was the case here. This explains why the briefs of evidence from the Magistrates’ Court proceedings and Ms Hughes’ notes of those proceedings were provided to the other Panel members.

So, again, emphasising the connection in terms of evidential commonality. Then the argument that the council put fails at the opening part of 42:

It is not realistic to view Ms Hughes’ interest in the matter as coming to an end when the proceedings in the Magistrates’ Court were completed. A line cannot be drawn –

So, the attempt that the council had made to subdivide the proceeding failed, why:

It is reasonably to be expected that her involvement in the prosecution of the charges created an interest in the final outcome . . . continuing interest in the matter may be tested by asking whether –

had an order for destruction been sought in the Magistrates’ Court, she would have had an interest, and the answer was clearly yes. So, really this is a situation where the Court is characterising Ms Hughes having been the “moving party” or the prosecutor as having that interest in a single proceeding or matter that continues with the component both of criminal sanction on the owner of the dog and the possible destruction of the dog. And then at paragraph 43 it said:

In any event, it is not accurate to describe Ms Hughes as a person who in fact had no ongoing involvement in advancing the matter –

So, this is an added string to the bow: it is not just because she was involved in the Magistrates’ Court, she was also an active participant in the second stage. Organising the hearing, drafting the letter, supplying:

the Panel with evidence, including further evidence she had obtained as relevant to the future housing of the dog . . . she was certainly the moving force.

Obviously, none of which can be said of Justice Bromwich. He plainly was not the “moving force” in the judicial review proceeding in the Full Federal Court. He did not affect the evidence that was in play there; he was not an instigating party. None of the factual dimensions that gave Ms Hughes her interest had any analogy across to the current matter. Now, having dealt with the fact that there was really just one matter here, then the dispositive reasoning for the plurality is at paragraph 46 and 49 in particular. So, the “personal interest” does not have be an interest that gives you a:

material benefit or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed –

So, that is echoing the kind of interest that Justice Gleeson identified in her question earlier. And again, we say, well, even if it be thought that Justice Bromwich did have in some way an interest in this sense in the point that he took or in the defending of the appeal against conviction some seven years earlier, one needs to ask the question, well, how could a decision about whether the Tribunal had made a jurisdictional error in any way vindicate the view that he had about the sentence? Sorry, it was not even a sentence appeal; it was a conviction appeal ‑ ‑ ‑

STEWARD J: Can I ask a related question in that respect? Do you put it that if such an interest existed, namely vindiciation, that it ceased to subsist once he had confessed crime before the Tribunal and there were findings of fact to that effect?

MR DONAGHUE: We certainly submit that that is an important factor in the analysis of asking whether there was an inconsistency or how that interest in vindication might have affected what was going on in the Tribunal, because what was going on in the Tribunal did not relate at all to whether he had committed the offence in question. It was all about – and I will develop this, probably, after lunch – but the Tribunal proceeding is all about, does the risk of persecution if returned to Burkina Faso, do the interests of children in Australia – matters of that kind – do they provide a reason that is good enough to mean that the appellant should be allowed to stay in Australia.

Sorry, the issue on the revocation application – on the merits of the revocation application – was whether risks of persecution, interests of children – matters of that kind – are such that, even though he is a person of poor character, he should be allowed to stay. The issue in the Federal Court is of course not the merits of those questions but whether the Tribunal made a legal error in addressing those questions, and none of that has anything to do with anything that was in issue in the criminal proceedings.

So, even if, as a prosecutor, Justice Bromwich did have some interest in vindicating his opinion, here, what was happening in the Federal Court proceedings seven years later was too far removed – in marked contrast to what was at issue in Isbester, where the factual and temporal connections were much closer.

Finally, on the plurality, if your Honours turn to 49 where you have already been – but I do need to make some submissions about this paragraph. The first point to note about 49 is that the first sentence in terms says that Ebner is applicable to cases of the kind here in question – that is, Ebner is applicable to incompatibility or conflict of interest cases – the Court says so in the first sentence. Then it replies:

The test directs attention, as a first step in cases where apprehended bias is alleged, to –

what is identified as:

the critical question of the decision‑maker’s interest.

So, it is not that that interest can be deemed to exist. It needs to be spelt out, as was said earlier:

The difference in the application of the test is that in cases –

that involve incompatibility is that – and you cannot skip the next words:

once the interest is identified as one which points to a conflict of

interest –

so, once you have done that, then the answer “is obvious”, but you cannot skip that step by saying, because you are a prosecutor, you automatically have an interest. That is not at all what the Court was holding in Ebner and not consistent with the paragraphs I have gone through, including, in particular, 34 and 46, where the Court is at pains to spell out the interest as the vindication of their opinion that events have occurred.

So, if we change the facts a little, and Justice Bromwich, instead of being appointed to Federal Court, is appointed to this Court, he obviously could not have sat on an appeal from the matter in which he appeared as DPP in Victorian Court of Appeal. Why not? Because that would have involved an attempt to vindicate the correctness of the arguments he had put as counsel for the DPP in the Victorian Court of Appeal below – that would have been a classic and easy illustration of the application of this doctrine.

It might be that if there were – if a fine had been imposed, and then there were related proceedings concerned with his capacity to pay or matters of that kind where there was a direct connection between the two, that there would have been application of incompatibility of this kind. But the main point I am seeking to develop is that one needs an analysis of how one gets from a role in the appeal, even if you assume that his Honour did have an interest in vindicating what he said there, to any feared deviation from his role as a member of the Federal Court seven years later.

Your Honour Justice Gageler’s reasons have also been mentioned at 63 and 68. In my submission, your Honour’s reasoning is to materially the same effect. Your Honour puts the interest slightly differently. But having noted at 63 the general rule that you “cannot be accuser and judge”, your Honour says it is not a “free‑standing rule”, again consistently with 49, it is a “clear‑cut application” of the usual test, so, in my submission, your Honour and the plurality are at one, in that one applies Ebner here. Then, applying Ebner, from the sentence that begins:

Rarely could a fair‑minded observer not think . . . “[i]f he is an accuser he must not be a judge”. That is because a person who has been the adversary of another person in –

So instead of saying “connected” your Honour says:

the same or related proceedings –

But, again, a connection is clearly required, it is not just that you had been a prosecutor:

can ordinarily be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy –

consequences. Now, where there is a connection we do not quibble with that analysis, but if there is not a connection between the prosecution and the subsequent related proceeding that supports the inference of a – or the inferring of a frame of mind of that kind, then as a factual proposition you would get a different answer.

So that if, to take an example, someone is summarily prosecuted in the Magistrates’ Court for a traffic offence, they have been an accuser, but it does not follow that the person who accused them can never thereafter be a judge in respect of any judicial issue that might come before a later court because there would be no basis to say that the frame of mind that the person had in relation to the prosecution of the traffic offence means that they could not bring an impartial mind to the resolution of a migration dispute later.

It is a factual question whether the person has been involved enough. So, you might get different answers, to pick up your Honour Justice Steward’s point, where the Prosecutor is a prosecutor where the person pleads guilty, versus where the Prosecutor is a prosecutor who examines, over several days up hill and down dale and makes submissions that the person should go away for life, the frame of mind that you would attribute to that prosecutor is different, as a factual proposition.

Where you have not been involved in the prosecution at all but you come in later to argue a point of legal principle, which is what Justice Bromwich did, different again, in our submission, and the authorities bear that out, although perhaps noting the time, your Honour, I might not take you to them.

KIEFEL CJ: Thank you. The Court will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Thank you, your Honour. If your Honours have our written outline of suggestions, you will see that, having dealt with Isbester, which I have finished doing, we turned to two ways we understood the interest to be identified by the appellant in this case.

The first was the formal role of Justice Bromwich in carrying out the prosecution. While perhaps our friends have not formally abandoned that, they certainly have not developed it, and your Honours will recall that the salient facts were identified very much in terms of two episodes – episode one being the appearance on the appeal, and episode two being the sitting in the Full Federal Court. So, the formal prosecutorial role seems to be, at most, by way of background, and in those circumstances, I do not seek to detain your Honours in relation to it beyond what is in writing.

So, if I could turn – so that means I am going to pass over paragraph 5 of our written outline, and turn immediately to paragraph 6 – the significance of Justice Bromwich’s role as counsel in the ‑ ‑ ‑

GORDON J: Sorry, can I just understand that, does that mean in relation to paragraph 5, you rely on your written submissions?

MR DONAGHUE: Yes, it does, that is right. But there is a small wrinkle in that part of the case, in the sense that in order to be entitled to look at the case through that lens, your Honours have to be satisfied that something that was in Justice Bromwich’s mind was able to be treated as evidence that was before the Court. Because, unless your Honours are satisfied about that, there is a problem with section 73 allowing this Court to have regard to it. Because, while the fact is not controversial, we cannot concede a fact into evidence in this Court on the authority of Mickelberg. I do not seek to be heard in relation to that, but I just note that – if your Honours would need to jump that intellectual hurdle, if I can put it that way, before that part of the case comes into play.

But, given that our friends focus on their role of Justice Bromwich’s counsel on the appeal, that is where I propose to spend my time. In turning to that, I do want to start with what Justice Bromwich said about his role in that appeal and that has caused me to reflect over lunchtime on the question your Honour Justice Gordon asked me.

Can I refer your Honour to paragraph 42 of our written submissions where we collect some authorities in support of the idea that it is permissible to look at what a judge says by way of a statement of recollection or their statement of the facts to supplement what, and your Honours will see there is a reference to a House of Lords judgment in Helow v Secretary of State for the Home Department (Scotland) and a reference to the Supreme Court of Canada in Wewaykum Indian Band v Canada. Both of those cases, the House of Lords at paragraph [39] and the Supreme Court of Canada at 88 to 90, are good clear statements of the permissibility of what I am about to do.

In this Court, in Webb v The Queen, and your Honours do not need to go there, I will just read your Honours one passage, Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, it is volume 4, tab 23. At the top of page 52, Chief Justice Mason and Justice McHugh say, first:

that it is the Court’s view of the public’s view, not the court’s own view, which is determinative.

But then, a few sentences on, their Honours say:

That does not mean that the trial judge’s opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge’s view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge’s findings.

So, there is an issue if the judges try to explain away why something they said did not indicate prejudgment or something like that, a self-serving statement cannot be taken into account, but a factual statement can be. There are three things that I want to emphasise about what Justice Bromwich said. If your Honours can go to the core appeal book at page 156, three things about his Honour’s involvement.

JAGOT J: Sorry, which page?

MR DONAGHUE: Page 156 of the core appeal book – not the book of further materials.

JAGOT J: Yes.

MR DONAGHUE: This in his Honour’s reasons in the Full Court, which deal only with the apprehended bias question. His Honour otherwise agreed with the other members of the Court. But, in dealing with that question, the first point – which is a short point – is that – his Honour says in the first sentence of 55 that he appeared in:

a conviction appeal brought by the present appellant, following a guilty verdict by a jury.

So, his involvement commenced post‑conviction. And, in that sense, I submit, he cannot have been the moving party in obtaining the conviction, although he was, of course, defending it. Second, at paragraph 56, his Honour says:

The limited issue raised by the appellant’s conviction appeal did not entail me having any regard to any aspect of the appellant’s conduct or conviction that did not directly relate to the admissibility of the evidence in question. Nor did it call on me to have regard to his sentence or his criminal record, nor anything else to do with him as an individual.

Then, there is the sentence recording when he noticed the point. And then the last sentence in that paragraph:

The contents of the conviction appeal judgment did not feature in the appeal before this Court in any way –

it was only in the appeal book because it was part of the material before the Tribunals. So, in my submission, that rather weighs against the idea that his Honour, by reason of his role in the appeal, should be inferred to have informed a state of mind of the kind discussed in the passages in Isbester that I took your Honours to this morning.

Third and relatedly – and you see this through particularly paragraphs 54 and 61(1) – his Honour gives an account of his practice when DPP and appearing in appeals, and his Honour says:

I appeared in a significant number of prosecution sentence appeals, a lesser number of defence appeals brought against conviction and sentence, and at two sentence hearings. My appearance at defence appeals was confined to cases that involved a point of principle of general importance.

In 61(1) his Honour returns to that theme, stating:

As Director of Public Prosecutions, I only appeared in appeals such as the one in issue here on a point of principle, and not usually in relation to factual matters . . . I had only a faint memory of the criminal appeal case in terms of any of its factual detail.

I remembered the legal principle. So that is what we know about the factual state of affairs in terms of his Honour’s role on the appeal and the question, in my submission, is therefore whether those facts establish a continuing interest that is in conflict with his Honour’s judicial duty to impartially deal with the judicial review application in the Federal Court. That is the determinative legal question: is there a conflict between any interests that can be inferred to exist from those facts, and the impartial discharge of his duty?

There are some cases that suggest that the answer to that question is no; certainly that deny. There is a considerable body of cases that deny that even a role as actual prosecuting counsel rather than just as counsel on appeal may not lead to disqualification. But, insofar as counsel on the appeal is concerned, there is one case that is quite close to the present, which is the one that I am going to take your Honours to. It is R v Garrett, but just before I go there, I will not take your Honours to – unless your Honours seek to hear from me on them – on two other intermediate appellate court authorities: McCreed and Muldoon, which are both cases that involved a judge as actual prosecutor being held not to be disqualified from subsequently serving as a judge.

In my submission, those cases are consistent with Garrett, but factually further from our present context. Both of them I will refer to later, without taking your Honours to it, in support of some of the factors that I submit are relevant in deciding whether proceedings are consequential or related proceedings in the terms in which that test is identified in Isbester.

If your Honours were – as some of the submissions this morning seem to be inviting your Honours to do – to be attracted to a general proposition that holding office as a prosecutor, serving as a prosecutor means that you can never thereafter exercise judicial power even in unrelated proceedings, your Honours will be overturning those three intermediate appellate court authorities, and quite a number of single‑judge authorities, many of which are collected in paragraph 37, footnote 72 of our written submissions – if the rule were to be stated in that stark term. Once one accepts that there needs to be a relationship between the original proceeding and the later one, then, of course, it becomes a factual and evaluative judgment, but ‑ ‑ ‑

EDELMAN J: There is a middle ground as well. I mean, you may have a situation where there is not a relationship between the offences but the difference might not be one as stark, for example, as prosecuting a traffic offence and hearing an appeal in relation to wilful murder, and in that middle ground might be cases like McCreed or related cases where the court seems to think, well, if it were a prosecution of a sexual offence then you cannot sit on the appeal for the sexual offence, but if it were prosecution for wilful murder then you can sit on the appeal – the sexual offence – if there is a significant enough delay.

MR DONAGHUE: I accept that there might be that middle ground and, indeed, in my submission, the way our friends sought to get around cases like McCreed and Muldoon was by this “but for” connection between the two proceedings. In fact, you might not have that “but for” connection but have a much stronger basis for disqualification just based on the factual similarity between the two matters, and McCreed and Muldoon are both interesting from that point of view because there were serious sexual offences in quite high degree of similarity between what had been alleged in the first proceeding and what was alleged in the second, even though there was no connection between them. In my submission, there is a much stronger basis to think there is disqualification there than just because you have a “but for” connection.

So can I take your Honours to Garrett, which is a decision of the Full Court of the Supreme Court of South Australia. It is in volume 5, tab 39, (1988) 50 SASR 392. When your Honours have that, can you turn to page 393 to start with, which is the second page of the report, at the start of the judgment of Chief Justice King, where his Honour recounts that:

The appellant was tried in the Supreme Court on an information alleging three counts of rape . . . a count of false imprisonment . . . a further count of assault . . . a count of false imprisonment of a man –

who had been with her, so serious sexual offences alleged, and he was found guilty and he appealed. Then, if your Honours go on to 399, still in the Chief Justice’s judgment, at the very bottom of page 399, it is noted that:

A further ground of appeal which was argued in relation to all charges, is that the learned trial judge should have disqualified himself by reason of apparent bias. It appears that on . . . 1976 the appellant was convicted by a jury in the Supreme Court on four charges, one of forceable abduction, two of rape and two of assault occasioning actual bodily harm.

So, that is the earlier proceeding that is there referred to, that proceeding in 1976. Obviously, some factual similarity between the serious sexual offences that were alleged. Then, at the top of 400:

There was an appeal to the Court of Criminal Appeal of this State and on that appeal the learned judge, who was then Solicitor‑General –

And your Honours will recall that, going back in time, State Solicitor’s‑General had functions that overlapped with DPP’s. It is only comparatively recently that the DPP functions were separated, so there is an equivalent high public office. The Solicitor‑General appeared on the appeal for the respondent:

The appeal was dismissed and there was a subsequent application to the High Court for special leave –

and the Solicitor‑General again appeared on the hearing of that:

The appeal and the application for special leave to appeal were principally concerned with a question of law –

But, as you see at the end of the paragraph:

Nevertheless in the course of the argument the facts were the subject of discussion . . . and the then Solicitor‑General put points . . . adverse to the appellant.

Your Honours will then see that the Chief Justice applied, in the middle of the page, the Livesey formulation, recognising that you should not automatically disqualify yourself, in effect. And then, their main reason appears under that block quote:

Whether the fact that a judge has previously appeared as counsel against a party . . . gives rise to a reasonable apprehension of bias must depend upon the circumstances. It is not difficult to conceive of circumstances in which that would be so. The learned trial judge in the present case, appeared as counsel only at appellate level. The issue on the appeal was a question of law and such submissions as referred to the facts did so only in an incidental way. I have read the transcript . . . There is nothing to suggest that the then Solicitor‑General had formed any personal view of the case and was doing other than making submissions on behalf of the Crown in the ordinary way –

All of that could equally have been written in relation to this case. Over on the top of page 401, his Honour says:

A decision to disqualify himself was not to be made lightly; certainly it was not to be made unless there were genuine grounds for making it. The learned judge declined the application to disqualify himself and I think that his decision was correct.

So that is the Chief Justice ‑ ‑ ‑

GORDON J: Do you rely upon what is at the foot of that page as appropriate reasoning?

MR DONAGHUE: At the foot of page 400?

GORDON J: Yes, please.

MR DONAGHUE: It depends exactly on what your Honours means, but I rely on that whole paragraph.

GORDON J: Thank you.

MR DONAGHUE: Yes, I do. If your Honour is asking about the relevance of the practicalities of it, that is part of the reasoning in this Court’s explanations of why a judge has a duty to sit. Part of the reason ‑ ‑ ‑

GORDON J: That is why I am asking. So, you rely upon that as part ‑ ‑ ‑

MR DONAGHUE: I do, I do. As I opened, Justice Bromwich had to make a practical real‑world decision: do I force this appeal to go off, even though what has been put to me is a weak application, or do I allow it to continue? And so, I do. Justice Jacobs agreed with both the Chief Justice and Justice von Doussa, so the reasoning I have just showed your Honours has the support of at least two members of the Court, but Justice von Doussa reasoned to similar effect, if your Honours go on to page 404 of the report.

You can see where his Honour dealt with this point in the middle of the page. His Honour said, in effect – under the block quote, about five lines down, questions of degree, depending on all the circumstances, so it is a factually‑intense question, about five or six lines further down:

In the absence of some unusual feature in the particular proceedings, I am able to accept that such an observer might believe that a former Solicitor‑General who once appeared at the appellate level as counsel for the Crown against a party . . . would depart from the duty he had sworn to perform on taking judicial office.

So, their Honours gave particular emphasis to the fact that the involvement was only at appellate level and only on point of principle of general public importance. And, in our submission, that factor, equally present here, is a weighty factor in support of the conclusion that Justice Bromwich reached. That reasoning has been applied in various cases, including in the Eastman case my learned friend took your Honours to this morning. It stood for some 35 years, and it was part of the foundation for McCreed and Muldoon.

In my submission, this case was a much harder case than your Honours are now confronting, because it is easier to see why it might be thought that defending an appeal involving very serious sexual offences might have caused the Solicitor‑General to form a state of mind that was relevant when he had to act as trial judge in another matter involving allegations of serious sexual offences of a quite similar kind. It is much easier to see how a reasonable observer might have seen that connection.

In my submission, this case is much easier because, unlike presiding over another offence involving an alleged cocaine importation by the appellant, here we are in a migration context, seven years later, in an application solely concerned with whether legal error was made by the AAT. So, you just do not have anything like the same basis to apprehend that a state of mind in one proceeding would influence the other.

GAGELER J: So, the hypothetical reasonable person in South Australia in 1988 seems to have known a great deal about the usual practices of barristers, of judges, about the Solicitor‑General’s office. There is a lot attributed to the lay observer.

MR DONAGHUE: Your Honour, in my submission, what it boils down to attributing to the lay observer, is that when a high official comes in and argues an appeal – a legal appeal – that that does not commit them to a state of mind to the same extent as other levels of involvement in a criminal proceeding might. I probably do need to accept that it seems to go that far, but I do not know that the lay observer needs to know anything more than that.

There is, in my submission, a difference between appellant level‑involvement and trial‑level involvement; at trial‑level involvement you can expect often prosecuting counsel would be very much in the face of the defendant – cross‑examination, making allegations directly to them, making submissions about what consequences should follow from their behaviour. That is just not true in an appeal on a legal point of principle, and, in my submission, this case reflects that.

KIEFEL CJ: There are questions of degree, of course, but the approach in Garrett is somewhat analogous to that taken in Charisteas. There is an assumption that – the judges start with the assumption that the reasonable observer has a level of knowledge about how things are done that judges know that these days is not actually attributed to the reasonable observer.

MR DONAGHUE: Your Honour, often these cases do involve debates about how much knowledge one can attribute. My friend this morning spent the first half an hour of his submissions attributing a very high level of knowledge to the reasonable observer about the criminal proceeding, and the formal status of the DPP, and his responsibilities, and what it involved, and indictments, and people being suspect for the purpose of 23V of the Crimes Act, and then said at the Migration Act judicial review part, they did not know anything about that, that was too complicated.

One has to, in my submission, be consistent as to the level of attribution as between the two levels and, in my submission, it is not to go to far to say – and I do not need there to be a detailed level of understanding – in my submission, to say that there is a difference between a criminal trial where the defendant might be cross‑examined and submissions might be made about the findings that should be made on the basis of their behaviour are different from the more rarefied atmosphere of an appeal court, is not, in my submission, to attribute too much to the reasonable observer.

In my submission, if one does not adopt an automatic rule that says if you have prosecuted you can never sit as a judge, then there must start to be facts that allow you to distinguish between some cases where you have acted in a prosecutorial role and other cases where you have not. It then becomes a debate about how many facts you can take into account. One line that your Honours might choose to recognise is a line between prosecutorial involvement and appellate involvement. But in my submission, it will, because – as Isbester recognised – it is all ultimately a question of facts.

In my submission, really where your Honours respectfully should end up is in an evaluation of whether it can reasonably be said that because of the prior role – whatever that may have been on the facts – there is an interest that might conflict with the exercise of judicial duty, and as I have said in answer to Justice Edelman, I do not actually need your Honours to conclude that on the facts you would have reached the same answer as was reached in Garrett, or McCreed, or Muldoon, because they were all harder cases, because there was this – quite similar factual allegations involved.

In all of those cases – in Garrett it was the appellate role that was critical, in Muldoon and McCreed long periods of time have passed between the original proceedings and the subsequent proceedings, and that is another factor that we submit relevantly goes into the mix in terms of what a reasonable observer would think about whether there is some interest that continues, even if you had an interest in convicting the person at the time; is it really right to say 10 years later, when the judge cannot even remember having been involved in the case, that they have an interest that is inconsistent with them acting impartially as a judge with all that that entails?

GORDON J: Just to pick up on that last point about “the judge cannot remember”, one of the reasons why the rule has the double might is because judges are fallible. They do not remember. That is the very reason why we have the test as it is in the objective form.

MR DONAGHUE: That is true, your Honour, but that is not to deny the relevance of the passage of time.

EDELMAN J: The problem with passage of time as a factor is it creates a great conundrum for an applicant that, if the applicant does not raise an application for recusal, they might sort of hope that the judge had forgotten. If they do raise it, then they are bringing back potential recollections and a flood of memories that is the very thing that they fear.

MR DONAGHUE: They might be. I think the way it often seems to play out in the facts, as it played out here, is actually that the appellant – they have not paid any attention to who the judge is, who convicted them, and it is judge, when they look at the file and they say I was the Prosecutor in this case and then they disclose it. That is, I think, what happened McCreed and Muldoon, as well as, obviously ‑ ‑ ‑

GORDON J: That is because sometimes – not a lot – but it is not an unheard of practice for DPPs to be very prudential, when appointed to the court, to not be involved in any matters which they have either signed the indictment of or been involved – even indirectly – as a Director of Public Prosecutions to avoid the very issue which we are trying to contend with here.

MR DONAGHUE: Yes. I would not want to say anything against a prudential approach that tries to avoid any apprehension, but in my submission, ultimately, this case is a case where your Honours will be asked to – your Honours are, in effect, being asked by our friends to frame a rule – your Honours are being asked to say that there is just a fundamental incompatibility. That is not the way that, apparently, largely, irrespective of whether an interest can be shown in vindicating earlier decisions or anything of that kind, and that is not the way that it has been approached in this country hitherto, and not the way that it has been approached overseas either.

I will not take your Honours to the comparative cases, but can I give your Honours the references. There is a very helpful article concerning the American position by Zitter, which your Honours will find in volume 7, tab 56 – it is headed “Prior Representation or Activity as Prosecuting Attorney as Disqualifying Judge from Sitting or Acting in Criminal Case” – so you can tell from the title that it squarely involves the issue that your Honours are looking at now. In that paper – “article” might be overstating it a bit, it is really a collection of case references and commentary, but the most relevant parts are sections 7[a] and 3[b] and 4[b]. Your Honours will see there are many, many American cases in which it has been held that acting as a prosecutor in unconnected proceedings does not prevent the person from acting as a judge.

In Canada, the position is the same. You can see the position usefully summarised the case we have given your Honours in volume 5, tab 40, which is R v Goodpipe, 2018 SKQB 189 – and the relevant authorities are discussed particularly at [12] to [16] – but at paragraph [12], the learned judge says:

Canadian jurisprudence has long accepted that prior dealings with an accused person, standing alone, are not sufficient to raise an apprehension of bias on the part of a judge . . . the fact that the presiding judge was formerly a Crown prosecutor, and worked in an office which prosecuted criminal charges involving the accused does not, without more, lead to an apprehension of bias –

and so on.

GAGELER J: Do any of the cases usefully analyse the degree of connection that would be sufficient to give rise to an apprehension of bias? What you just described is a long way from the present case.

MR DONAGHUE: They illustrate different factual situations of different degrees and consider which side of the line that they fall on.

Williams, for example – which our friends relied upon this morning – is another case, we submit, it is far removed from the present, because Williams is a case where, as District Attorney, the District Attorney personally approved the death penalty for Mr Williams and, subsequently – many years subsequently – the death penalty not yet having been – sorry, as DA, he approved seeking the death sentence, then there was a trial conviction, the death sentence was imposed, and, many years later, a court stayed the death penalty, and an application was made to the Pennsylvania Supreme Court to vacate the stay of the death penalty, and the Chief Justice of that Court was the DA who had approved the seeking of the death penalty.

So, the issue before the Court was, do we vacate the stay of the death penalty that he had himself personally decided to authorise seeking and he refused to disqualify himself, and they then re‑instated the death sentence. The question for the Court was: was there an apprehension of bias? And of course there was, because that was a matter where the case involved a serious risk that the judge would be motivated by validating or preserving their own decision. So, in the language of Isbester and the “state of mind”, it could not have been clearer in Williams that that existed. So, it does not really help our friends to say, well, this was a – it is true that this all happened about 30 years after the original decision had been made – there was a long delay – but it was still a proceeding that was about the very decision that the DA had made and then had to consider as a judge.

So, I cannot – and I am not actually suggesting that there are really bright lines – I am suggesting there are relevant factors that bear upon whether – to use the language of Isbester – a proceeding is consequential or related, and in my submission, the task is, looking at those factors, to decide whether proceeding 1 – in which the person prosecuted – is consequential or related to proceeding 2 and, if it is, to then apply the Ebner test to the interest thereby identified. That is the method that we say is appropriate.

GAGELER J: Mr Solicitor, I suppose what I was asking was, within the mass of American case law, can we find a useful discussion of the principles applicable in the marginal case, that is all, rather than be forced to wade through it all?

MR DONAGHUE: Yes. Well, your Honour, I can arrange for us to wade through it more. In that article, which is generally concerned with this topic, the cases in section 7[a] are the ones that I think are most instructive, but there are a few of them.

EDELMAN J: There must be a danger, must there not, in relying particularly on American jurisprudence where their criminal justice system operates, at least in relation to procedure, in some very fundamentally different ways to ours, and the reasonable hypothetical observer that we are concerned with is the reasonable hypothetical Australian observer.

MR DONAGHUE: Your Honour, I fully accept that. There are differences, of course, I accept, and that is why I started with Garrett and the other Australian intermediate authorities. But the point I was seeking to make is that, again, if your Honours were contemplating a proposition that there is some incompatibility of roles at a fundamental level without this kind of evaluative inquiry between being a prosecutor and ever being a judge, your Honours will not only be overruling in the Australian cases, but you will be doing something that is quite different from the way that the comparable problem has been analysed in other comparable jurisdictions.

I am not suggesting it is exactly the same, but all of these jurisdictions have a reasonable apprehension of bias concept, although the tests are different, and in all of them it is recognised that sometimes prosecutors should not be judges and sometimes they can be, and it is a question of working out where you draw the line between those things. My submission is that you should not accept that the very sort of mechanical automatic disqualification that would arise from the “but for” kind of reasoning you see in our friend’s submissions in paragraph 45 and in their reply at paragraphs 9 through to 10.

Isbester at 48 to 49 and Ebner at 54 both strongly point against any automatic disqualification rule of that kind. They say you apply the ordinary principle. Our submission – and I will develop each of these four categories – but our submission is that when you are assessing this question of relatedness or whether one proceeding is consequential on another, you do not ask a “but for” causation question; you ask a question that has regard to factors that help to analyse the closeness of the connections. So, we submit there are four.

KIEFEL CJ: Just before you get that, before you develop that, if I might interrupt you, could you provide a note directed to the question posed by Justice Gageler with respect to the United States authorities and the Canadian authorities, looking for that sort of statement of how one approaches the question in the marginal area.

MR DONAGHUE: Yes, your Honour.

KIEFEL CJ: Thank you, if you could produce that within seven days, and the appellant may wish to respond, so sometime in the New Year. We might add to your task. If you could also provide a comparative approach to the approach taken in courts in this country.

MR DONAGHUE: I will do that, your Honours. Could I seek the Court’s indulgence and ask for more than seven days on that task?

KIEFEL CJ: Yes, of course. It is an awful time of year.

MR DONAGHUE: It is a difficult time of the year, with ‑ ‑ ‑

GORDON J: It is called a Christmas present.

KIEFEL CJ: When would suit, say, by towards the end of January?

MR DONAGHUE: Yes.

KIEFEL CJ: Shall we say 21 January, or is it too soon?

MR DONAGHUE: I think we can probably manage 21 January.

KIEFEL CJ: You can ask for an extension if that is a difficulty.

MR DONAGHUE: Thank you, your Honour.

KIEFEL CJ: And 28 January for the appellant.

MR DONAGHUE: Is there a page limit that your Honours wish us to work to? We will be economical if we can, but ‑ ‑ ‑

KIEFEL CJ: No, but we would expect you to be as economical as you always are, Mr Solicitor.

MR DONAGHUE: Thank you, your Honour.

GORDON J: So, can I just ask one question about where we are going on the premise that we will get this analysis, these are the factors that you say bear upon whether a proceeding is to be considered related or consequential. Can I ask where these factors are drawn from?

MR DONAGHUE: The authorities.

GORDON J: And are you going to walk us through those as you go?

MR DONAGHUE: Well, I was not going to take you to all of them, but Garrett and McCreed and Muldoon would support.

GORDON J: That is what I am asking. They are the ones that you are using?

MR DONAGHUE: They are the main ones. But the first factor that I am going to emphasise does not actually come from those cases, but I will give your Honours an explanation as to how I have come up with it. To try to put it in a framework, what I am seeking to do is, starting from the requirement in Isbester, particularly at paragraph 49, to spell out clearly the interests which can be factors that point to a frame of mind or a vindication‑type interest that mean that having taken a position in proceeding number 1, there is a conflict with the duty to act impartially in proceeding number 2.

I am seeking to identify matters that assist in working out whether the correct relationships exist between the two proceedings, and those factors, in our submission, then feed in to the hypothetical observer question, which is where I am going to finish my submissions on ground 2.

GORDON J: Thank you.

GAGELER J: So, is the basic incompatibility that one is looking for or exploring, an incompatibility between an adversarial state of mind or an adversarial attitude on the one hand, and a deliberative or adjudicative state of mind or attitude on the other? Is that what we are weighing up or is there something more to it?

MR DONAGHUE: Well, that is part of it, but part of it is an adversarial state of mind in relation to what? To a particular set of allegations? And whether that is inconsistent with an adjudicative state of mind, in relation to what? My first factor for example, which will illustrate the point, is whether the correctness or appropriateness of the decision taken in the first proceeding is in issue in the second proceeding, which is the Williams kind of situation I just described.

There, if you have that factor, you will likely disqualify most – it is hard to see why you would not disqualify, because there, a state of mind that existed in the first proceeding – an adversarial state of mind, for example, that someone should be convicted of rape. Where the second proceeding, say, for example, a reference under the miscarriage of justice‑type provisions, if that were to come before a judge, then they would be effectively being asked to evaluate their own conduct, and because of the subject matter connection between those things, there would be an incompatibility with the adjudicative state of mind required in relation to the exercise of judicial power at the second step.

We struggle to find authorities that would support the existence of that first factor, because where it exists, almost inevitably, the judge will not sit. But you do see a parallel to it in what the Court said in Re Polites; Ex parte Hoyts, which your Honours do not have in the joint book, it is [1991] HCA 25; (1991) 173 CLR 78, and it is a parallel because this is obviously not an accuser situation, but there the Court was concerned with the situation of prior legal advisor and client, and whether a reasonable apprehension arose by reason of acting as a legal advisor in earlier matters, and what the Court said is, you do not, generally, have a reasonable apprehension of bias in that situation unless the correctness or appropriateness of the advice given to the client is a live issue in the proceeding; so where there is a connection of the kind that I am talking about in that context, that supports an apprehension because it is inconsistent with the judicial evaluative state of mind to be ruling on your own work, in effect.

That factor is not directly borne out in the accuser‑type cases, but in my submission, must be a relevant one. Thereafter – I will list my other three factors and then I will develop them a little – my second factor is commonality of facts, evidence and remedies. My third factor is temporal proximity, and my fourth is commonality of parties.

As to the second – commonality of facts, evidence or remedies – that was a major focus in Isbester. Your Honours will remember that the plurality reasons, in particular, emphasise that even though the issues were somewhat different between the Magistrates’ Court and the panel, the brief of evidence put together for the Magistrates’ Court was before the panel, Ms Hughes’ notes from the court proceeding were before the panel, the order that was sought in the panel proceeding could have been sought in the Magistrates’ Court proceeding. That commonality of issues and evidence seemed to be a major part of the plurality’s reasons for why the panel proceeding was, if not part of the same matter, then at least consequential or related in a way that gave rise to the incompatibility held to exist there. I will stop there.

As to temporal proximity, that was a major reasoning of the intermediate courts in each of Garrett, McCreed, and Muldoon, and I accept that – as Justice Edelman put to me – that there can be some complexities thrown up by that issue, but, equally, in our submission, if one is engaged in a factual evaluation of whether or not a judge can be reasonably apprehended to not bring an impartial mind to the discharge of their judicial function, it is relevant to know whether the conflict that is said to exist is something that they have done recently, likely to be fresh in their mind, likely to be something that reflects views that they could reasonably be inferred still to hold, and whether what happened was much more distant in time, such that ‑ ‑ ‑

GORDON J: I have a bit of difficulty with that submission, Mr Solicitor, because we know from, even looking at some of the cases that have been reported, that the application itself prompts memories that have faded, so I wonder whether that temporality really has the bite that you suggest it does.

MR DONAGHUE: Well, I am urging it only as one of the relevant matters, so I am not suggesting that it is decisive. But while it might prompt some recollection, it often also prompts the judge to say – and it is not a hard thing to believe, in my submission, in relation to someone who was a professional prosecutor, for example, they have no doubt have done hundreds and hundreds of cases in their life and any barrister often struggles to recall what they did a year or two ago, let alone 20 years ago, because it is just impossible to keep all of those things in one’s memory, there are sufficient factual similarities between all of those matters. So, where there has been an intervening – many, many intervening cases and issues, the connection is, we submit, weaker.

Similarly, it is hard to see one proceeding as consequential, or another certainly not supportive of the analogy our friends draw with being a judge in your own cause if not only is the subject matter of the proceedings different, but the parties to the proceeding are different, so that obviously the DPP has no involvement in migration‑related decisions under the Act, and similarly the Minister for Immigration has nothing to do with criminal proceedings, and that is just one significant objective indicator of the fact that the two proceedings do not involve the same cause, that they are, by contrast, fundamentally different.

GLEESON J: Mr Donaghue, is that not precisely the kind of distinction that a lay observer might not make?

MR DONAGHUE: In my submission, your Honour – and I will develop this in a moment – but the lay observer at least is taken to know, on the authorities, enough about the statutory regime and the subject matter in issue to ensure that the judgment, the hypothetical judgment to be made is not arbitrary, and here that must mean that the hypothetical observer understands that what Justice Bromwich was being asked to do was to make a decision relating to the migration status of the appellant.

They must know at least that much – and, in my submission, cases like CNY17 would suggest they know quite a bit more than that much, that they understand that the judge was called upon to ensure that the Tribunal did not make a jurisdictional error in its assessment of the non‑revocation decision concerning the visa.

Once they know that much – and, in my submission, on the authorities, it is not unreasonable to attribute that much knowledge to them – they must understand that it is totally different from a criminal prosecution. Just in subject matter, it is completely different. So, in my submission, it is not unreasonable to attribute to the observer appreciation of the subject matter distinction of the kind I have just tried to identify.

The main point that I would seek to develop in applying all of those factors that I have just sketched this case is the one, really, that I just hinted at in answering Justice Gleeson, because here, stepping back, it is very hard to see how it can reasonably be said that an appeal in the Full Federal Court seven years after a criminal appeal is related to it in anything other than the formal “but for” sense that our friends identify in their submissions. It is a decision‑making process – the decision‑making process that one has to apprehend Justice Bromwich would not have engaged in fairly is one where at no point was his Honour called upon to form any view at all about the criminality or otherwise of the appellant. That just was not an issue in the proceedings.

Your Honour Justice Steward asked me a question that brought this up earlier. But his Honour said at paragraph 56 in the appeal, the content of the appeal, in the Federal Court appeal the content of the Court of Appeal judgment did not feature in any way in what was being done, and that is not surprising because the Tribunal’s decision that was the subject of the judicial review application was about non‑refoulement, which you see in the reasons at 151 to 175, about the strength of the appellant’s ties to Australia, which you see at 176 to 186, and about the best interests of minor children.

So, the facts that underpin any legal argument about jurisdictional error in the Full Federal Court were all facts that just did not intersect at all with whether or not the appellant was a suspect at the airport when he imported cocaine. It is very hard to see how, if Justice Bromwich had a state of mind about that question, whether the appellant is a drug importer, even if he did, seven years later – and he said he did not; he said he had no recollection of it – but even if he did, we submit one cannot articulate by a logical process how that state of mind would impinge upon his ability to faithfully discharge the judicial review jurisdiction, given what the Tribunal was looking at. So that difference in subject matter, the complete divergence in evidence, subject matter, remedies, together with the seven‑year time difference, in our submission, lead to the conclusion that his Honour’s decision was right.

In concluding on ground 3, can I just make three points that we submit bear upon, to come back to my answer to the Chief Justice’s question about the hypothetical observer and what we submit the hypothetical observer should be taken to know – and this is, we submit, supported by CNY17 and the other cases there discussed.

So, first we submit that the observer is taken to have an awareness of the nature of the proceedings, which here means an awareness of the fact that what the Full Court was doing was a judicial review claim, not a merits review claim. And so that Justice Bromwich was not forming any view about whether or not the appellant should have a visa, and the fact that there was a third step removed from – between the merits decision‑making of the kind that the panel was involved in Isbester and the judicial role, is something that we submit logically bears upon whether the hypothetical observer would think that Justice Bromwich’s role as Prosecutor might be inconsistent with his discharge of his judicial duty.

Second, in our submission, the hypothetical observer, we say, is taken to know that, as Justice Bromwich explained, he did not become involved until after the conviction, and he only became involved because legal points of principle were involved. And third – and this is a factor that I do not think has been mentioned in the appeal so far, but this Court has, on a number of occasions, emphasised that the hypothetical observer is aware that judicial decision‑makers are persons:

whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and prejudicial.

Your Honours will recall that the Court said that in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at paragraph 12. It was endorsed quite recently by your Honour the Chief Justice and Justice Gageler and Justice Edelman in CYN17, and it is a factor that in the authorities is often accorded significant weight.

It is particularly relevant here because, without repeating all of the matters I have just made, given the distance in time and, more importantly, the distance in subject matter between the criminal appeal and the judicial review in the Federal Court, one would have to attribute to the observer a risk that Justice Bromwich would, despite his oath, not bring an impartial mind to the visa‑related decision that was before him.

KIEFEL CJ: Is not that looking at the actuality advice rather than the perception of ‑ ‑ ‑

MR DONAGHUE: No, your Honour, because – perhaps I phrased it incorrectly, and if I did, I withdraw it – but Johnson is emphasising what the reasonable observer would be taken to know or to consider, and part of the evaluation of the “might” – whether the judge might not bring an impartial mind – is knowing that the judge is someone who is not only trained to disregard the prejudicial and the irrelevant, but has sworn to do so. So, if the hypothetical observer thought, well, maybe I was otherwise inclined to be a little bit worried ‑ ‑ ‑

KIEFEL CJ: You have to weigh in the balance the frailties of the human mind, too – the observer would take that into account, because otherwise, being a judge would be the end of the matter.

MR DONAGHUE: I accept that that is so. And I accept that it is not the case that being a judge is the answer. But equally, your Honours, I urge you to recognise that in Johnson and in cases, it has not been discounted as an irrelevant factor either. So, it is not the case that it is decisive as an answer to an apprehension – but it is also not the case that it is irrelevant; it is part of what goes into the mix in evaluating whether there is an apprehension of bias.

We submit, when one puts that together with the fact, that there is just no factual connection at all in terms of the subject matter of what Justice Bromwich did in proceeding 1 and what he did in proceeding 2. That is enough to mean that his Honour was correct in the conclusion that he reached.

KIEFEL CJ: Before you turn to ground 1, could I just return to the dates for that note.

MR DONAGHUE: Of course, your Honour.

KIEFEL CJ: I have managed to choose Saturday, which I am sure would not be convenient to anyone. So, could we make it Friday 20 January, for your note, Mr Solicitor, and Friday 27 January, for the appellant.

MR DONAGHUE: Thank you, your Honour. I should say, just before I move to ground 1, that your Honours will have seen that, if your Honours are against me and everything that I have said so far, we do not oppose the conclusion that the appeal would be allowed, notwithstanding that Justice Bromwich was only one member of the three-member panel. But we do urge your Honours ‑ and in this respect, I understand the appellants to agree with us – that your Honours should go no further than to conclude that where one member of a three-member of a unanimous three-member panel is apprehendedly biased, the decision should be set aside.

There are two matters I am seeking to reserve from that: one is the possibility that a larger Court might give rise to a different result – possibly this Court, with seven justices, possibly a Full Federal Court with five. It might not, I accept it might not. The Canadian Supreme Court thinks it does not make a difference. The size of the Bench, and in my submission, it is a matter that would be appropriate to be argued in a case where it is in play.

EDELMAN J: But that is to say, then, that there may be some role for materiality in cases of apprehension of bias.

MR DONAGHUE: Your Honour, I am not seeking to have the argument, I am seeking to reserve the argument for a future occasion. It might be the case, certainly the Canadian Supreme Court thinks it is the case, that there, with nine justices, that they would say that to have one judge who is biased, a reasonably observer would not – or apprehendedly biased, would not assume that that person is so influential that they can sway the minds of the other eight. I am not suggesting that your Honours would necessarily agree with that, but in my submission, you do not need to decide it in this case.

Similarly, there might be a question which, again, might turn out to have nothing in it, but where a judge has dissented – if Justice Bromwich was in dissent in this case, then your Honours might think that any efforts he made to influence his colleagues failed. And, so there might be less – with a unanimous judgment, it is impossible to know, in the collegiate discussions of the Court, whether one judge influenced the thinking of the others. It might be the case that the inference you would draw with a dissenting judge is different, where the apprehension of bias exists in dissent. Again, your Honours do not need to decide that, and in my submission, it would therefore be preferable to if you did not do it.

EDELMAN J: On one view, none of those questions are even the right question, that in cases of an apprehension of bias, materiality just does not even arise, and so one would not even get to the question of whether the one judge could influence two, three, seven, nine, 50 judges on a panel.

MR DONAGHUE: Your Honours, I accept that it is so, and if your Honours were to be confident that it could not – that there is nothing that can be said against the possibility that whatever conclusion you reach about three applies to nine, then it must follow that your Honours would not need to reserve those questions. All I am seeking to put is that, at least on the larger Court question, there is a different view in a superior Court elsewhere, and we have not argued the point here, but I do not seek to take it any further than that.

Can I turn to ground 1, your Honours, and start with this proposition which I do not now apprehend to be controversial – although perhaps I am wrong – which is that, in our submission, if ground 2 fails, then ground 1 cannot provide a basis upon which the appeal could be allowed. We submit that because if your Honours have looked at ground 2 and have decided that there was no reasonable apprehension that Justice Bromwich was biased, it would follow that your Honours would have decided that the Full Court was properly constituted in the appeal below.

If the Full Court was properly constituted in the appeal below, then, even if the way that it concluded that it was not biased was wrong, the answer was right – it was properly constituted in the court below and there is therefore no basis to set aside the order that was made because it was not properly constituted.

That submission is, we say, consistent with prior authority in this Court and there are two I will briefly mention – and I do not think I need to take your Honours to either of them. One is Webb, which I mentioned earlier – Webb v The Queen. In Webb v The Queen, the majority found that the trial judge applied the wrong test – the trial judge applied the English Gough test rather than the double “might” test.

But even though the trial judge had applied the wrong test, this Court held that having applied the right test, there was no apprehension of bias, the appeal failed on the apprehension of bias ground. Your Honours see that most clearly in Justice Toohey’s reasons at page 88, but also in Chief Justice Mason and Justice McHugh at 54 and the bottom of 56 – their Honours together comprising the majority. So, it did not matter that the test was wrong once this Court had determined the result.

That is also consistent with the plurality said in Ebner at paragraph 71, and perhaps I will take your Honours to that. It is volume 3, tab 15[2000] HCA 63; , 205 CLR 337. In paragraph 71, the issue here – there were two cases, Ebner and Clenae – this was ground of appeal that arose in Clenae which involved the proposition that Justice Mandie’s failure to disclose his acquisition of shares was itself a ground for disqualification. So, it was said in and of itself the fact that the judge had not disclosed the interest justified allowing the appeal, and the Court rejected that. And in paragraph 71, it said that the focus on the disclosure:

may distract attention from the fundamental question to be answered which is whether the reasonable apprehension of bias test is established. That question will be litigated on appeal from the substantive decision in the matter or in proceedings for prohibition . . . Whatever the process which the person alleging reasonable apprehension of bias may adopt, there will, in those proceedings –

that is, in the appeal:

be a full opportunity to make whatever case for disqualification of the judge the moving party can.

Skipping a sentence:

The question of disqualification can and will be litigated fully in the appeal or application for prerogative or like relief and no separate question of denial of procedural fairness could arise.

So, in effect, as we understand that passage, their Honours are saying, even if his Honour did err procedurally in failing to disclose the interest, the issue will be fully decided on appeal and if it is decided that there is no bias then there is no ground. So, in our submission, if ground 2 fails, your Honours do not need to decide ground 1 because it could not independently result in the decision being set aside.

EDELMAN J: That would be the same if ground 2 succeeds as well.

MR DONAGHUE: Yes.

EDELMAN J: That would be the same in every case, would it not, so, in theory, this Court would never need to decide the issue?

MR DONAGHUE: I said your Honours do not need to decide it. I did not say your Honours would not want to decide it. I am not saying your Honours are not entitled to decide the question if you are minded to do so. My point is that if you go on to decide ground 1, even if we were to lose ground 1, you should not send the matter back to the Full Federal Court because there would be no point in doing that because your Honours would have decided that there was no bias, no reasonable apprehension of bias, so there would be nothing still to be done in the court below.

In terms of the substance of the ground, in our submission, his Honour was quite entitled to follow the orthodox practice in Australia of deciding the matter himself. If your Honours still have Ebner to hand, you will note that in paragraph 74 this Court expressly endorsed that practice at the single judge level, particularly the last sentence of 74:

in our view, Goldberg J adopted what was both the ordinary, and the correct, practice in deciding the matter himself.

So, the law as to first instance judges deciding these questions themselves – and, indeed, their Honours were saying that specifically disagreeing with Justice Callinan’s suggestion that a different single judge should decide the matter ‑ ‑ ‑

GORDON J: But that was single judge versus single judge.

MR DONAGHUE: I agree with that, your Honour. So, that is just my starting point, is that the law is that clearly single judges should do it themselves, they should not ask someone else to step in.

GAGELER J: That is because they constitute the court.

MR DONAGHUE: I understand that, your Honour. But the same practice has been followed many times by multi‑member courts, including by this Court, in resolving disqualification applications. We have given your Honours many references in paragraph 47 of our submissions at footnotes 95 to 96. I only want to remind your Honours of two in this Court. The first is Kartinyeri, and there is a reference in one of those footnotes in paragraph 47, footnote 94 of our submissions, we give a reference to Kartinyeri v Commonwealth, a High Court transcript reference which unfortunately we did not reproduce for your Honours, though I can provide to the Court if you need it.

EDELMAN J: In Kartinyeri, the application was renewed before the other six members of the Court after the refusal to recuse, was it not?

MR DONAGHUE: It was, your Honour. It was, indeed. That is the very point that I am about to make. So that what happened was Justice Callinan decided not to recuse himself, sat as a member of the Full Court, and then very shortly thereafter an application was made by a notice of motion in the original jurisdiction of this Court, naming all seven Justices, seeking to have the Court review Justice Callinan’s decision.

The transcript reference we have cited in footnote 94 is to the directions hearing that Chief Justice Brennan conducted immediately after that notice of motion was filed, and his Honour said at the start of that hearing – I should say that Justice Callinan called upon him, the Chief Justice, after he had heard the bias submissions:

He informed me that he had not decided whether or not he should sit on Kartinyeri & Anor v The Commonwealth of Australia which was listed for the following day. I advised the Judge that there was no necessity for a decision before the following day and that he should think about the question overnight.

This is then the important part:

Although the Judge would have welcomed consultation with other members of the Court, the view was taken by me and by the other Justices that, at least at first instance, the decision was one for the Judge alone.

So, as Justice Brennan recounts it, Justice Callinan wanted to speak to the other members of the Court about how we should proceed and that all of the members of the Court thought he should decide the matter himself, at least at the first instance. Now, this case was then to raise – the parties were Mr Spigelman QC, as his Honour then was, Dr Griffiths, my predecessor, and Mr Jackson QC – everybody said how interesting this will be in what difficult jurisdictional questions are raised about whether or not the Court can review the decision that Justice Callinan had made. So everyone was gearing up for a complicated legal argument about whether or not the Court could review Justice Callinan. But what is plain is that the Court thought, in the first instance at least, his Honour had to decide it.

EDELMAN J: It would not really have been a review of Justice Callinan’s decision, would it? It would have been the Court’s decision in original jurisdiction as to whether the Court had jurisdiction to sit with Justice Callinan.

MR DONAGHUE: And also perhaps whether the Court had any capacity to stop Justice Callinan from sitting, or to stop him from delivering judgment if he had wished to do so. So those questions ‑ ‑ ‑

KIEFEL CJ: Which would put the Court in the position that the South African Constitutional Court sometimes says, that no one should ‑ ‑ ‑

MR DONAGHUE: That no one should sit.

KIEFEL CJ: Well, you should not sit with the judge with whom you disagree.

MR DONAGHUE: I am not asking your Honours to answer these questions now.

KIEFEL CJ: No. Be very pleased about that.

MR DONAGHUE: I am seeking to indicate that – the point I am seeking to make is that it is not straightforward at all but that the way the ‑ ‑ ‑

KIEFEL CJ: But in a practical sense it is not unusual in a circumstance such as occurred where the judge is given the opportunity before the matter proceeds to a full‑blown hearing on questions of jurisdiction and constitution of the Court to consider whether or not they will voluntarily recuse. That is really all it comes down to, does it not? It is not really a decision of the judge. What happened there was – what Chief Justice Brennan said was not that Justice Callinan would be deciding the matter in the first instance himself and then there is some kind of review from it.

MR DONAGHUE: Well, your Honour, Justice Callinan decided that the apprehended bias of the case was made the day before the Full Court hearing. Justice Callinan decided to sit and no one then – then he sat, and it was only when there was the subsequent proceeding that came on ‑ ‑ ‑

KIEFEL CJ: I realise you are relying on this to say this has been the practice to date.

MR DONAGHUE: That this has been the practice, and similarly, your Honour Justice Gageler might recall in Unions (No 1) an application was made that your Honour should not sit in that case and your Honour gave reasons explaining your decision not to sit, but at least from the public‑facing side it does not appear that that was regarded as anything other than your Honour’s decision.

GAGELER J: I will correct what you said just slightly. There was no application that was made to me or to the Court. What was said to be a question or an issue was raised by counsel for the Commonwealth at the very beginning of the hearing. The Court adjourned and then I said what I said. But there was no application. It was unlike Kartinyeri in that respect.

MR DONAGHUE: Unlike Kartinyeri. Indeed. Thank you, your Honour, I appreciate the correction. What your Honour says perhaps emphasises the reality of these kinds of applications, which is that the procedure is often informal. There is often no clear evidentiary record; there is usually no order made by the court. As a matter of common practice often a judge simply announces they will or will not continue to sit. It is the absence of an order that explains cases such as Michael Wilson, which say, well, what you do is you wait until the next interlocutory order is made by the judge even if it is an adjournment order or a directions hearing, then you appeal that on the apprehended bias ground because it is only at that point that you have an exercise of judicial power that engages the ‑ ‑ ‑

GORDON J: Well, it is only at that point that you have a consequence that is attached to the exercise of judicial power, which is the subject of the apprehended bias.

MR DONAGHUE: That you have a decree or order that is capable of appeal.

GORDON J: Correct. Yes.

MR DONAGHUE: But all of that tends rather against the idea advanced by our friends that what is happening when such an application is determined is an exercise of the appellate jurisdiction of the court. Because if that were really right, then the Federal Court Act provisions upon which our friends rely say, well, the Full Court has to exercise it – has to exercise the jurisdiction of the court. So, if the disqualification application really is an application made in the appellate jurisdiction of the court, it has to be decided by the court; it cannot be decided by a subset of the court.

GORDON J: That is one of the reasons why I was surprised when you went – before you got to this ground, and you said, listen, we do not want you to deal with, sort of, the potential for it to go elsewhere, otherwise five, seven, nine and 11 panels, because the Federal Court has its own unusual statutory framework.

MR DONAGHUE: Well, I certainly accept that, your Honour. But, in my submission, that unusual statutory framework is not one that commits decisions as to the constitution of the court to the appellate jurisdiction of the court. Normally, it is, in the first instance, the Chief Justice makes an administrative decision under section 15(1AA) of the Federal Court Act as to who will constitute the court in the exercise of its appellate jurisdiction, and Parliament has obviously expressed the view that that is not a judicial decision. It is excluded from the ADJR in schedule 1, so as to prevent judicial review of decisions of that kind.

The practice of judges informally deciding not to sit or changing the constitution of the court is all inconsistent with there being an exercise of the judicial power of the court in the appellate jurisdiction because you could not do that informally or by one judge rather than the court as a whole.

GORDON J: But once the court is constituted and application is made or raised, then is not the court determining whether or not it has got jurisdiction, whether it is properly constituted?

MR DONAGHUE: Well, in my submission, it has never been viewed in that way, which is why the orthodox practice is a single judge doing it, often informally. I appreciate that arguments have been raised, including by Sir Anthony Mason, that one could see it in the opposite way, but the orthodox practice that I describe of a single judge, even in an appellate court, making the decision is an orthodox practice that Sir Anthony Mason accepts is the practice on page 24 of his article. The ALRC in its Without Fear or Favour report from December last year accepts that the existing practice is the practice I have just described at paragraph 7.102. The Australasian Institute of Judicial Administration Inc, Guide to Judicial Conduct ‑ ‑ ‑

KIEFEL CJ: May I correct you there.

MR DONAGHUE: Sorry.

KIEFEL CJ: The Guide to Judicial Conduct is written by the Council of Chief Justices of Australia and New Zealand. It is kindly published with the aid of the AIJA. It is constantly updated, and I do not think at 3.5 you see any discussion of anything other than a single judge determining their refusal or not.

MR DONAGHUE: It just became more authoritative, your Honour, so thank you for that. In terms of 3.5, 3.5 does not distinguish, I accept. But it appears to be directed, generally, at the problem. We relied on it for its failure to distinguish between the first instance and appellate practice, because the first instance practice is the Ebner practice. It is also the practice followed in comparable overseas jurisdiction. We have given your Honours the Hammond book, Judicial Recusal: Principles, Process and Problems, and at paragraph 109, he describes the same practices in Canada and the US.

In our submission, one cannot really doubt that there is an orthodox practice, and that Justice Bromwich did follow it. The question is whether your Honours should change it. In our submission, the very question of whether it should be changed is the subject of the Law Reform Commission report that I mentioned. They have made a recommendation that the practice be changed, recommendation three, discussed at 7.103, and they suggest an amendment to the rules of court – so delegated legislation to provide for the answer to the question.

Your Honours are really being asked to – I should say, that recommendation, as the report discloses, is not uncontroversial. The Australian Bar Association opposes it, the Australian Judicial Officers Association opposes it. There is a contest about whether the law reform should happen in this area – you see that at 7.121 and 7.122 – and, in our submission, there is no reason why your Honours, knowing that this is under active law reform consideration, should change what is a very settled practice. Particularly because if you did change it, it might then become necessary to answer the kinds of interesting questions that everybody was getting excited about when the matter was before Justice Brennan in Kartinyeri.

It might start to become necessary to say: well, once it is not the locus of authority – to use my friend’s phrase – is not the judge him or herself, you get Justice Jackson’s question from Jewell Ridge by what power can this Court exclude one of its other Justices from sitting? In the Hammond book there is an interesting discussion of Jewell Ridge, which reveals that the backstory is that Justice Jackson, who made that statement, strongly sought to prevent Justice Black, who was the swing vote on the particular issue on Jewell Ridge, from sitting, because he had previously been a law partner of one of the counsel in the case.

There was, by all accounts, a very vigorous disagreement within the Supreme Court as to whether or not Judge Black could sit, and ultimately he made the decision that he would, and that decision prevailed. When Judge Jackson says that there is no power to exclude, it is something that he apparently felt strongly about, because he wished to exclude Justice Black from sitting, and that had not been able to happen. While it might usually be the case, as my friend put to your Honours, that in practice everyone will behave in a way that reflects the views of the majority, one can see circumstances in which that might not be so, and if those circumstances arise, the Court obviously cannot issue – certainly in the Federal Court – cannot issue prerogative writs to itself, cannot issue prohibition to itself, that is Re Jarman; Ex parte Cook.

The judge, of course, is not themselves a party, so it is not clear how they could be made subject to an order, or by what authority the Court
would start to exclude one or other of its members if that member, believing it to be their conscientious duty in accordance with their oath to sit, had a different view, and one does not want to end up in the unsatisfactory situation, your Honour the Chief Justice mentions in South Africa, where one judge wants to sit, other justices feel that they cannot sit because the court is not properly constituted. So, all of that is really to highlight that there are complex issues here and that there is no reason why your Honours go there in circumstances where Justice Bromwich decided the application in accordance with an entirely conventional understanding of the law.

Unless your Honours have any questions, those are my submissions.

KIEFEL CJ: Yes, thank you Mr Solicitor. Do you have anything by way of reply?

MR NEKVAPIL: I do, your Honours. I will try to be as brief as I can.

KIEFEL CJ: I was not telling you to be short, I was only asking whether you would like to reply.

MR NEKVAPIL: I would like to be brief. Your Honours, we join with the Solicitor‑General and the Minister in submitting that one can completely understand how things transpired on the day. We would also submit that no criticism should be made of counsel below who had a very short space of time and approached a senior silk, had a conference with his client and so on. These arguments have been complex, and it would not have been possible to come up with in such a short space of time.

The learned Solicitor‑General focused on interest and, we would submit, really was treating interest in accordance, of course, with statements in his best – but really was treating interest as inquiring into a conscious state of mind or at least, an impression of a conscious state of mind. In that regard, it does tend more towards the old view that a judge was incapable of being affected. We would just refer your Honours again to the discussion in CNY17 which is picked up in the decision at tab 28 in GetSwift [2021] FCAFC 26; 283 FCR 328 at paragraphs 39 and following, which does go through observations from judgments as well as academic material, really to make the point that a judge is also a human being and susceptible to the same forms of unconscious bias. So that, whereas the oath is of course a relevant factor, it may not be a full answer to things that are under the surface.

The key distinction in terms of the nature of the judicial task in this case as compared to the panel task in Isbester really calls into question what the observer would make of the task that his Honour was participating in performing. We would submit that the observer would understand, in some way, that one of the very fine things about our legal system is the legal and
actual role performed by the Chapter III judiciary in supervising the legality of conduct and decisions by the Executive and the importance of a very high standard of independence in that regard.

The Solicitor-General used the metaphor of a subdivision of property, suggesting that the two proceedings are somehow hermetically sealed. If I could, we would adopt a different metaphor, which is a metaphor of a track which, once the conviction had been obtained by the Office of the DPP, our client, QYFM, was on a track which eventually would lead to deportation. And, at the first junction where he could have got off, Justice Bromwich appeared as Director on the appeal, and at a further junction, his Honour then appeared in the Chapter III court and, really, once one takes away the formal qualities of the separate proceedings, there is a continuous line of consequence.

Just in terms of a question that your Honour Justice Edelman asked concerning materiality, although we do join in the overall submission, we would say that their question was not was one judge affected by apprehended bias, and then what effect did that have on the Full Court, but was the Full Court affected. And if you ask that question in that way, then there is no next question.

Just in terms of ground 1 and ground 2, we would accept what the Solicitor‑General had said about – obviously it is for your Honours to decide was there or was not there, but we would say that if the Court was improperly constituted to decide that question, that would be an appealable error. It may just be that if the answer was right, then your Honours would still dismiss the appeal. But it still is an error different from the error in Webb, which was a reasoning error, because it concerned the proper constitution of the Court to decide the question. Ground 1 only arises because there was a formal objection in our submission.

Finally, on the law reform point, it is obviously only an exercise of law reform if it is not already the law and, as I have already made clear in our primary submission, we would submit that that is the legal conclusion. The fact there may have been a convention, especially in this Court, does not bear directly on the answer to the question about the Federal Court of Australia Act.

If the Court pleases, those are our submissions in reply.

KIEFEL CJ: Thank you, Mr Nekvapil. The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.

AT 3.41 PM THE MATTER WAS ADJOURNED