Recusal process splits the Saloon … Who should consider a bias application? … All over the shop on judicial “ethics” … Challenge to the appearance of justice over its substance … Max Shanahan reports 

Justice Robert Bromwich had refused to step away from hearing the Federal Court appeal of QYFM v Minister for Immigration, etc against a decision to cancel a visa on character grounds following a drug importation conviction. 

“Minutes” before the commencement of the appeal hearings, Justice Bromwich belatedly recalled that, in his role as Commonwealth DPP, he had appeared for the prosecution in the Victorian Supreme Court in QYFM’s appeal against his criminal conviction. 

Upon an application to the court, HH declined to recuse himself from hearing the Federal Court visa appeal, arguing that his appearance in the criminal matter related only to issues of legal principle, and his knowledge of the facts was limited.

By majority, with Simon Steward and Jacqueline Gleeson JJ dissenting, the court held that Bromwich should have recused himself, per the Ebner test – overturning R v Garrett and McCreed v The Queen, relied upon by Bromwich and the Solicitor General, where it was held that judges who had acted against defendants in former lives were found not to give rise to an apprehension of bias. 

Having disposed of the main issue, the Saloon turned to “seriously considered dicta” on whether the recusal question should have been considered by the full court or Bromwich alone. 

The ALRC in its judicial bias report recommended the FCA and FCFCA should “specify that objections on bias grounds to one or more judges sitting on a multimember court are to be determined by the court as constituted”. 

Such a recommendation goes against generally accepted practice and, perhaps unsurprisingly, only 22 percent of judges surveyed by the ALRC supported the change, in contrast to 80 percent of lawyers. 

The court ultimately split down the middle on this question, with a plurality of Michelle Gordon, Steward and James Edelman JJ supporting the notion that the impugned judge should hear the application first and, if an objection is maintained or the other judges “consider that there are matters giving rise to a real potential for apprehended bias”, the full bench may consider a recusal application. 

Justice Jayne Jagot held that only the judge against whom the objection is made should hear the matter, while Susan Kiefel CJ and Stephen Gageler J aligned with the ALRC to argue that such questions should go to the court as constituted. 

For Edelman and Steward their maintenance of the single-judge procedure rested on a conception of judicial ethics as a personal matter and a fear of “mechanical justice”. 

For Edelman, “ethics are a lonely affair because they cannot be delegated to a committee … the single judge is the only person who can scrutinise their own knowledge and beliefs”. 

Likewise, Steward rejected the notion that, by dint of a particular past circumstance, a judge’s duty to decide cases allocated to him or her might be “set aside because of merely superficial circumstances”. 

By contrast, Kiefel and Gageler approached the question from a jurisdictional standpoint. They held that as a finding of bias negates the exercise of judicial power … 

“… it becomes apparent that responsibility for ensuring an absence of bias – whether actual or apprehended – lies with a court as an institution … the duty, indeed the ‘first duty’ of any court is to be satisfied of its own jurisdiction.” 

In single member courts, they held, recusal applications are heard by the judge themselves as they constitute the court. The same framing should extend to multimember courts, it was argued.

Even within broad principled areas of agreement, the justices disagreed on other issues. 

Gordon, for example, proposed “adopting and adapting” the recommendations of the ALRC report to devise an administrative system whereby “the court may circulate a list of cases among judges before they are allocated to give the judges an opportunity to raise any concerns”. 

Such a proposal was anathema to Steward quoting Ebner: 

“[judges] do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause.”

As one wag on Twitter mused …

— Nicholas Baum (@BarristerBaum) May 17, 2023

Regardless, if the ALRC’s recommendation is adopted in the court rules, the matter will be taken out of the bench’s hands.