Was the primary judge disqualified for apprehended bias?
23 Mr and Mrs Charan also contended that the primary judge ought to have disqualified himself because when their present application, the subject of this appeal, was docketed to him he had decided the previous application adversely to them. They sought to rely on what Mason J said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.
24 In our opinion what Mason J said justified and required the primary judge not to disqualify himself. Mason J said (161 CLR at 352):
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546 at 553-554]; Watson [(1976) 136 CLR 248 at 262]; Re Lusink; Ex parte Shaw [(1980) 55 ALJR 12 at 14; 32 ALR 47 at 50-51]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
(emphasis added)
25 Here, first, there were no issues of credibility to be determined in the assessment of whether or not Mr and Mrs Charan could make out a case for judicial review of the officer's decisions to refuse their applications, and, secondly, his Honour was bound to apply the law as authoritatively determined in Charan 247 FCR 422. Mr and Mrs Charan appeared to have assumed that his Honour, or another judge, would have been free to come to a different decision on the construction of the 2001 or 2016 Agreements and the Social Security Act in respect of their entitlement to an aged pension from that which the Full Court had determined to be the law in Charan 247 FCR 422.
26 That was a misconception. The role of the courts in our system of government is to determine what the law is, and to apply it to the facts of a particular case. Once a court has determined what the law is, that decision has, unless set aside by another court or negated by an Act of Parliament, the effect of the force of law throughout Australia. And an order made by a superior court of record, such as this Court, even if made without jurisdiction, is not a nullity, but rather it is valid and binding until set aside on appeal or under s 75(v) of the Constitution: Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177-178 [22]-[23] per Gleeson CJ, 185-186 [52]-[53] per Gaudron J, 215-216 [151]-[152] per McHugh J, 235-236 [216] per Gummow J, 248-249 [255]-[257] per Kirby J, 279 [343]-[344] per Hayne and Callinan JJ.
27 Therefore, the primary judge was bound to apply, as was any judge of the Court sitting as a single judge, the decision of the Full Court on the very issue which Mr and Mrs Charan had sought to reagitate without any relevant change in circumstances apart from having spent a longer, but still insufficient, period as Australian residents since the last refusal of their application for a pension.
28 As Gleeson CJ, McHugh, Gummow and Hayne JJ said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8]:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(emphasis added)
29 Likewise, in a case like the present where the asserted connection was that the primary judge was bound to follow the Full Court's decision on the proper construction of the legislation applicable to the claim, there can be no reason to think that the primary judge would not have determined the matter on its merits and impartially, as we find he did.