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[1998] HCA 52
procedural. Callinan J declined to disqualify himself and concluded that he should sit in the case ([38]).
The plaintiffs said Callinan J should not hear their case because he had previously helped prepare an opinion about the proposed Hindmarsh Island Bridge Bill for a Senate committee, at a Commonwealth Minister's request. He also disclosed other connections raised by the plaintiffs. Applying the apprehended-bias test, he concluded that his earlier work had not involved deciding disputed facts or credibility, and that he had not helped draft or promote the legislation. He therefore decided not to disqualify himself. These reasons determine only his participation, not the merits of the underlying case.
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2,097 words · generated 05/10/2026
These reasons address a preliminary question about who could hear the case, not the substantive constitutional dispute. The plaintiffs, Doreen Kartinyeri and another, objected to Callinan J sitting. Their central concern was that he had previously co-authored, with Mr Traves, an opinion about the proposed Hindmarsh Island Bridge Bill 1996 (Cth). The opinion had been prepared for a Senate committee after a request from the Commonwealth Minister responsible for Aboriginal Affairs.
No linked legislation citations have been extracted yet.
As Callinan J recounted, the Minister had explained that the Government wanted to pass the Bill, that the Opposition proposed an amendment, and that a Senate committee was considering the Bill's validity ([4]). The opinion considered whether the Government could legislate to remove further action under the Heritage Protection Act, and whether the legislation might be challenged if it could be construed as racially discriminatory or if it operated retrospectively ([4]). The plaintiffs said that expressing an opinion on issues before the Court could suggest prejudgment, and that the concern was increased because a Commonwealth Minister, whose government was a party, had sought it ([8]).
There was no formal motion, and Callinan J said none was necessary ([2]). He set out his recollection of the request and work, and disclosed other connections that the parties should know about. These included preparing draft terms of reference at Mr McLachlan's request while Mr McLachlan was in Opposition, and advising him about the return of some misdirected documents ([11]-[12]). Callinan J also acknowledged that Mr McLachlan had supported construction of the bridge ([13]).
The judge's conclusion was that the circumstances did not require him to stand aside. He identified three central considerations: his advice involved no issues of fact or credibility, the case involved exclusively legal issues, and he had played no part in drafting, advocating or implementing the legislation ([38]). The reasons do not decide whether the legislation was valid or whether the plaintiffs succeeded on their substantive claims.
Callinan J applied the apprehended-bias test: whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to deciding the issue ([16]). The focus is not simply whether a judge has expressed a view, or whether a party fears an adverse result. The question is whether the circumstances support a reasonable apprehension that the judge will not decide impartially.
The distinction between an adverse view and partiality was important. Quoting Mason J in Re JRL; Ex parte CJL, Callinan J emphasised that the ground for disqualification is a reasonable apprehension that the judicial officer will not decide impartially, “rather than that he will decide the case adversely to one party” ([18]). A prior decision or view may give a party an expectation about the result, but that does not itself establish that the judge will approach the case with bias. The apprehension of prejudgment must be “firmly established” ([18]).
The nature and scope of the earlier opinion mattered. Callinan J did not minimise the overlap: the opinion addressed legal questions about the proposed Bill that were relevant to the proceedings ([4], [8]). But he explained that neither the opinion nor the draft terms of reference required him to assess facts or form views about anyone's credibility ([26]). He also said that he gave no further advice about amendments or other matters concerning the legislation ([7]). In the case itself, the parties agreed that there were no factual or credibility issues to resolve ([25]).
The distinction between advice about law and involvement in advancing the legislation also mattered. Callinan J contrasted his position with that of a person who had directly participated in preparing legislation and had taken active steps to secure its passage as principal law officer. He discussed those circumstances in connection with Victoria v The Commonwealth and Connor ([29]). His own account was that he had provided a legal opinion but had not drafted, advocated or implemented the legislation ([38]).
He did not consider each connection in isolation. At [28], he framed the question as whether all the circumstances together, including his acquaintance with Mr McLachlan and the other matters raised, produced the relevant apprehension. He also referred to Re Polites; Ex parte Hoyts Corporation Pty Ltd, which says that the nature of a former lawyer-client relationship, the scope of the advice and the issues to be decided are relevant ([37]). After considering the circumstances cumulatively, he concluded that disqualification was not warranted ([38]).
The reasons present the apprehended-bias test as an established principle, rather than creating a new test. At [16], Callinan J stated the fair-minded lay observer formulation, referring to Webb v The Queen and Livesey v New South Wales Bar Association. The reasons also draw on Livesey to caution against a judge automatically standing aside whenever a party requests it ([17]). In the Court's formulation quoted there, automatic disqualification could amount to an abdication of judicial function and encourage procedural bias.
The judgment's contribution is its application of those principles to a judge's prior legal opinion on legislation relevant to a case. It explains why the existence of a prior legal view is not necessarily equivalent to prejudgment. At [23]-[24], Callinan J observed that judges often come from legal practice and may previously have expressed views about statutes that later come before their court. He reasoned that an opinion on a legal matter would not ordinarily, by itself, create a reasonable apprehension of bias. He connected this with Re JRL, where an earlier judicial decision may shape expectations about a later outcome without establishing partiality ([24]).
The reasons also identify circumstances that could change the analysis. At [29], Callinan J contrasted his position with direct participation in preparing legislation and active steps to secure its passage. At [37], the passage from Re Polites distinguishes general legal advice from advice that recommends a course of conduct to advance a client's interests, particularly where the effectiveness or propriety of that conduct later falls to be decided. The reasons therefore support a contextual inquiry, not a categorical rule that former legal advice either always disqualifies or never disqualifies.
The decision did not settle a special rule for constitutional cases. Callinan J noted that the case was constitutional and important, but said he did not understand the plaintiffs to argue for a different test on that account ([30]). He proceeded on the basis that no exceptional principle for constitutional cases had been firmly established ([38]). That qualification matters: the reasons apply the ordinary test in this case; they do not declare that constitutional cases can never raise distinct considerations.
At [16], the reasons state the central question: whether a fair-minded observer, knowing the material facts, might reasonably apprehend that the judge could not bring an impartial mind to the case. In plain English, it is an objective assessment of the circumstances, not simply the judge's own confidence or a party's suspicion.
At [18], Callinan J quotes the warning that the issue is whether the judge may fail to decide impartially, “rather than that he will decide the case adversely to one party.” In plain English, a party's expectation that a judge will reject its argument is not enough. There must be a basis to apprehend a lack of impartiality.
At [26], Callinan J says neither the opinion nor the draft terms of reference required him to examine facts or assess credibility. This identifies a boundary he regarded as significant: his prior work concerned legal questions, not findings about the people or contested events involved in the litigation.
At [37], the cited passage from Re Polites says much depends on the nature of the prior relationship, the scope of the advice and the issues for determination. In plain English, the label “former adviser” does not resolve the question. The content and purpose of the advice, and how closely the current dispute concerns that advice, matter.
At [38], Callinan J gives his own summary of the decisive factors: no factual or credibility issues in his advice, exclusively legal issues in the case, and no role in drafting, advocating or implementing the legislation. This is the clearest statement of how he applied the test to the particular circumstances.
The decision is most directly relevant where a judge has previously expressed a legal opinion about legislation, or has had a professional association with a person or organisation connected to the dispute. It signals that the analysis should examine what the judge did, what the earlier opinion addressed, and what issues the court must now decide.
The reasoning is particularly useful where the prior work concerned legal interpretation but did not involve assessing evidence, disputed facts or the credibility of a party. In this case, Callinan J relied on the absence of those factual matters and on the exclusively legal nature of the issues ([25]-[27], [38]). The decision also distinguishes a legal opinion from active participation in drafting or promoting legislation ([29], [38]).
The reasons indicate that closer scrutiny may be relevant where a former adviser's own advice is directly in issue. The Re Polites passage quoted at [37] says that a former adviser should not sit if the correctness or appropriateness of the advice is a live issue. It also identifies a concern where advice went beyond explaining the law and recommended a course of conduct that must later be evaluated. That is a principle quoted from another judgment, used by Callinan J as relevant guidance; the present case did not involve the court deciding whether his opinion was correct.
The decision does not establish that every prior opinion about a statute is harmless, nor that every prior connection requires recusal. Its reasoning depends on the particular facts recounted in the reasons. A lawyer assessing another matter would need to compare the scope of the prior work, any overlap with issues now to be decided, the judge's role in relevant events, and whether the case requires findings about matters the judge previously considered.
The provided judgment contains no later judicial treatment of this decision. It is therefore not possible, on this source alone, to say whether later courts followed, distinguished, applied or criticised Kartinyeri v Commonwealth on this recusal issue.
The reasons themselves discuss earlier authorities, including Livesey, Re JRL, Victoria v The Commonwealth and Connor, The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd, and Re Polites ([17]-[18], [29], [31], [37]). Those citations show the authorities Callinan J used or considered when deciding whether to sit. They do not establish how later courts treated the present reasons.
For research purposes, any account of subsequent treatment would require separate later sources. Nothing in the judgment supplied here supports a claim about the decision's later reception or continuing precedential status.
The reasons leave some questions unanswered because they decide only whether Callinan J should sit on the particular facts. First, they do not determine what degree of overlap between prior legal advice and the issues in a later case would be enough to create a reasonable apprehension of bias. The opinion addressed legal issues relevant to the litigation, but the judge considered the absence of factual assessment and his lack of involvement in the legislation decisive ([4], [25]-[27], [38]).
Second, the judgment does not establish when legal advice becomes advice “to advance the client's interests” in the more specific sense described in the Re Polites passage ([37]). Nor does it decide a case in which the adequacy, correctness or appropriateness of the judge's own advice is directly challenged.
Third, Callinan J expressly proceeded on the basis that no exceptional principle for constitutional cases had been firmly established ([38]). The reasons do not resolve whether a different principle might be appropriate in another constitutional case, or what circumstances could establish one.
Finally, the reasons do not decide how much weight should be given to political associations, a former client relationship, or cumulative connections in a materially different setting. Callinan J said that cases about judicial disqualification depend on their own facts ([36]). The practical lesson from this judgment is therefore methodological: identify the objective circumstances, assess their combined effect, and distinguish prior legal views from involvement that could bear more directly on the judge's impartiality.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
CALLINAN J
DOREEN KARTINYERI AND ANOR PLAINTIFFS
AND
THE COMMONWEALTH OF AUSTRALIA DEFENDANT
Kartinyeri v The Commonwealth (A29/1997) [1998] HCA 52
5 February 1998
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CALLINAN J. The plaintiffs submit that I should not sit as a member of the Court in this case. They contend that aspects of a joint opinion provided by Mr Traves of the Queensland Bar and me, addressed to the Senate Legal and Constitutional Affairs Committee in relation to the Hindmarsh Island Bridge Bill 1996 (Cth) prejudges the issues to be determined by the Court in this matter.
No formal motion has been filed or is necessary. The defendant has properly taken no adversarial stance on the issue but has made submissions drawing attention to some of the relevant authorities and considerations. I appreciate very much the courteous and helpful way in which the matter has been raised and debated by the parties.
At the outset, I should state my recollection of the circumstances in which I came to give the opinion that I did. I have not been able at this stage to locate any documents that I may have had in my possession when I gave the opinion. I must however have had a copy of each of the proposed pieces of legislation (the Hindmarsh Island Bridge Bill and the Opposition amendment) referred to in the opinion.
I believe that events occurred in this way. Senator the Honourable John Herron, the Minister responsible for Aboriginal Affairs informed me orally that the Government wished to pass the Hindmarsh Island Bridge Bill; that the Opposition proposed an amendment to the Government's Bill; and that a Senate Committee was considering the validity of the Government's Bill. The Minister asked me whether I was prepared to provide a submission to the Committee. The specific matters to which he referred are identified in the first paragraph of the opinion which I quote:
"If passed, the Hindmarsh Island Bridge Act exempts the Hindmarsh Island bridge and pit area as defined in the bill from further action under the Heritage Protection Act by the Senate Legal and Constitutional Affairs Committee. We are asked to advise whether the Government may so legislate to remove any further obstruction to the building of the Hindmarsh Island bridge: whether, if the Act is capable of being construed as to give rise to racial discrimination it might on that account be successfully challenged, and, if the Act has retrospective effect, whether it might on that ground also be successfully challenged."
My best recollection is that I told the Minister that I was under some pressure from other work but that I could, in collaboration with junior counsel, provide an opinion. Although of course I appreciated that the Minister would certainly hope that my opinion would support the Bill, I told him that I could not predict then, what conclusion I would reach.
When Mr Traves and I completed the opinion, I sent the original of it, as requested by the Minister, to the Committee. I do not doubt that I also sent a copy of it to the Minister.
It is relevant that I gave no further advice whether as to amendments or any other matter pertaining to the legislation.
The plaintiffs first formulated their objection in written submissions on two bases:
The expression of an opinion on the very issues before the Court does suggest to a fair minded lay observer or party that a judge may not be impartial, and;
2. The relevant apprehension is compounded by the circumstances that the opinion was sought by a Minister of the Commonwealth, a party to these proceedings.
I interpolate that the opinion was to be provided for the assistance of a Committee which I understood to be politically bipartisan although I was unaware of its exact constitution.
Mr Spigelman QC who represents the plaintiffs has expanded upon those written submissions in light of some further facts that I thought I should bring to the attention of the parties.
I have known the Honourable Ian McLachlan, Minister for Defence, for many years. He was, I think, President of the National Farmers' Federation ("the Federation") when I represented the respondent in the Mudginberri Farm Case1. The Federation supported the respondent. It was then that I first met him. When Mr McLachlan was a member of the Federal Opposition in 1995, at his request, I provided some draft terms of reference for an inquiry to be established by the State Government of South Australia. I have given the parties a copy of the terms of reference. Mr Spigelman QC has confirmed that although a Commission of Inquiry was in fact appointed, the terms of reference which were adopted bear no resemblance to my draft.
I also informed the parties that I advised Mr McLachlan on another occasion when he was in Opposition, with respect to the return of some misdirected documents, which included documents the subject of other proceedings in which the plaintiffs were interested, but which I had no occasion to see, and of which I have no knowledge.
I accept that Mr McLachlan has been a proponent of the construction of the Hindmarsh Island bridge for a considerable period.
Mr Spigelman QC puts that I have had an association with "the substratum of the events that have led to this case being before the Court". That rather overstates the position. Many events have obviously occurred which have led the Government to pass the Act. I have had no association with any of these.
Mr Spigelman QC adds that it is "the cumulative force of all of the different elements that can create in a reasonable observer and particularly 'the party', the first named party", such an apprehension as should lead to my disqualifying myself.
The principle is not in doubt2:
"whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts 'might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question'3 in issue".
"it would be an abdication of judicial function and an encouragement of procedural bias for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court".
"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'6."
"The approval of the proposed law for the amendment of par (xxvi) by deleting the words 'other than the aboriginal race' was an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial."
Another member of this Court, Gaudron J, has expressed a like view on the matter.
In Chu Kheng Lim v Minister for Immigration, her Honour said8:
"In Koowarta v Bjelke-Petersen, Murphy J expressed the view – which in my opinion has much to commend it – that s 51(xxvi) only authorizes laws for the benefit of the race concerned, because, in context, 'for' means 'for the benefit of' and not 'with respect to'."
"It is however arguable that that power [Constitution, s 51(xxvi), the 'race power'] only authorises laws for the benefit of 'the people of [a] race for whom it is deemed necessary to make special laws'10."
Most judges on first appointment to the bench come from active practice as lawyers. In the course of a long career a lawyer is bound to have expressed opinions on the meaning and effect of statutes which will fall for consideration by a court to which such a lawyer is appointed.
I do not think that the expression of an opinion as to a legal matter, whether as a practising lawyer or as a judge on a prior occasion, will ordinarily of itself give rise to a reasonable apprehension of bias according to the relevant test. Mason J in the passage I have already quoted11 points out that the making of a previous decision by a judge on issues of fact and law, although perhaps generating an expectation of a particular outcome, does not mean that the judge will not be impartial and unprejudiced in the relevant sense.
The parties here are agreed that there are no issues of fact or credibility to be resolved in this case.
So too, the draft terms of reference that I prepared, and the opinion, in no way required me to examine any facts or to form any views on the credibility of anybody who is a party to this litigation.
In my opinion therefore there is no basis for any reasonable apprehension of bias on my part arising out of the opinion that I gave, or the provision of the terms of reference.
The question then becomes whether all matters, and by this I mean those to which I have referred in the previous paragraph, and, as Mr Spigelman QC puts it, my association with the substratum of the events that have led to this case being before the Court, including my acquaintance with Mr McLachlan, in the circumstances outlined, give rise to a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the question in issue.
My position is, I think, quite different from that of a person who, before coming to the bench, has been directly involved in the preparation of legislation that has to be construed by the Court, and who has taken active steps as principal law officer of the Commonwealth to seek to ensure the passage of a bill and to propound to the Governor-General the Senate's failure to pass it as a basis for a double dissolution. These were some of the circumstances that led Murphy J to stand aside in Victoria v The Commonwealth and Connor12. There were other closely related steps taken by his Honour there when he was the Attorney-General concerning that Act13.
Mr Spigelman QC accepts that it is a relevant matter that the case is a constitutional one, and, on that account and others, important. However I do not understand him to say that these factors are such as to call for the application of a different principle.
"A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination."
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1987) 74 ALR 7. ↩
Webb v The Queen (1994) 181 CLR 41 at 67-68 per Deane J. ↩
Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294 per Mason, Murphy, Brennan, Deane and Dawson JJ. ↩
(1983) 151 CLR 288 at 294 per Mason, Murphy, Brennan, Deane and Dawson JJ. ↩
Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. ↩
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14; 32 ALR 47 at 50-51. ↩
The Commonwealth v Tasmania (1983) 158 CLR 1 at 242. ↩
(1992) 176 CLR 1 at 56. ↩
(1997) 71 ALJR 991 at 1039; 146 ALR 126 at 193. ↩
(1982) 153 CLR 168 at 242 per Murphy J. ↩
Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. ↩
Kartinyeri
Commonwealth [1998] HCA 52;
(1998) 156 ALR 300
(1998) 72 ALJR 1334
(1987) 74 ALR 7
(1994) 181 CLR 41
(1983) 151 CLR 288
(1986) 161 CLR 342
(1969) 122 CLR 546
(1976) 136 CLR 248
(1980) 55 ALJR 12
(1983) 158 CLR 1
(1992) 176 CLR 1
(1997) 71 ALJR 991
(1982) 153 CLR 168
(1975) 134 CLR 81
(1922) 31 CLR 421
(1998) 72 ALJR 375
(1983) 151 CLR 599
(1998) 72 ALJR 280
(1991) 173 CLR 78
Callinan J declined to disqualify himself and concluded that he should sit in the case ([38]).
There is precedent for the participation by a judge in a case in which he has been directly involved when the issue is a constitutional one. In The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd14, two members of the Court had, when at the bar, been counsel for opposing parties in the litigation. They sat on the case but confined the hearing in which they participated to the constitutional questions.
The special circumstance in that case was that unless those two judges did sit, there was a real doubt whether any effective decision could have been given.
Some members of this Court have come to it directly from a career in politics and in government. Inevitably, in Cabinet and in the Party Room, they must have had a very close association with members of the Government whose legislation they have had from time to time to interpret. Sometimes the legislation may be in implementation of longstanding policy to which the former politician has subscribed and has perhaps even advocated. A particular association of itself, and even a current, proper one which observes the punctiliousness required in respect of a case and issues actually before, or which may be before the Court, should not ordinarily give rise to a reasonable apprehension of bias.
It is for this reason no doubt, that a member of the Court might feel free to sit notwithstanding even a close family relationship with a person who has urged publicly a view on a particular case or issues before, or likely to be before, the Court.
A number of the decisions of this Court have been decided by the narrowest of majorities. As recently as last Monday, there was a decision in which the Court was evenly divided on a matter of great importance to the administration of justice throughout Australia15. It is obviously desirable that the full complement of judges sit on constitutional cases.
I think that the various other cases referred to by Mr Spigelman QC16, as helpful as they are as examples, do not conclude the issue here. They all depend on their own particular facts.
One other case should be mentioned. In Re Polites; Ex parte Hoyts Corporation Pty Ltd, Brennan, Gaudron and McHugh JJ said this17:
(1975) 134 CLR 81. ↩
See "High Court Practice as to Eligibility of Judges to Sit in a Case", (1975) 49 Australian Law Journal 110. ↩
(1922) 31 CLR 421. ↩
Gould v Brown (1998) 72 ALJR 375; 151 ALR 395. ↩
Justice Dawson declining to sit in Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599; Justice Kirby declining to sit in Kruger v The Commonwealth (1997) 71 ALJR 991; 146 ALR 126; and Justice Hayne declining to sit at the hearing of The Commonwealth v WMC Resources Ltd (1998) 72 ALJR 280; 152 ALR 1. ↩
(1991) 173 CLR 78 at 87-88. ↩