QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 15 September 2021.

3. Remit the matter to the Federal Court of Australia to be heard and determined by a differently constituted Full Court.

4. The first respondent pay the appellant's costs of the appeal and of the hearing to date of the appeal to the Full Court of the Federal Court of Australia.

E M Nekvapil SC with N Boyd-Caine and C J Fitzgerald for the appellant (instructed by Zarifi Lawyers)

S P Donaghue KC, Solicitor-General of the Commonwealth, with A F Solomon-Bridge and A N Regan for the first respondent (instructed by Clayton Utz)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Courts and judges - Bias - Reasonable apprehension of bias - Where appellant appealed to Full Court of Federal Court of Australia from decision dismissing application for judicial review of non-revocation of decision to cancel his visa on character grounds - Where appellant sought recusal of judge sitting as member of Full Court constituted to hear appeal - Where reasonable apprehension of bias on the part of challenged judge said to arise from judge's appearance, in former capacity as Commonwealth Director of Public Prosecutions, as counsel for Crown in opposition to appellant's appeal against conviction - Where appellant's conviction causally related to cancellation of visa and non-revocation decision subject to challenge in Full Court - Whether fair-minded lay observer might reasonably apprehend that judge might not be impartial - Whether reasonable apprehension of bias on the part of challenged judge vitiated Full Court's jurisdiction.

Courts and judges - Practice and procedure - Whether application to disqualify judge for bias should be determined in the first instance by challenged judge alone or by all members of court as constituted.

Words and phrases - "absence of bias", "actual bias", "apprehended bias", "character test", "disqualification", "fair-minded lay observer", "impartiality", "impartial mind", "independence", "judicial power", "judicial practice", "jurisdiction", "logical connection", "multi-member bench", "multi-member court", "objection to jurisdiction", "reasonable apprehension of bias", "recusal", "substantial criminal record".

Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 43.

Federal Court of Australia Act 1976 (Cth), ss 11, 14, 15, 16, 25.

Migration Act 1958 (Cth), ss 476A, 500, 501, 501CA.

1. KIEFEL CJ AND GAGELER J. This appeal from a decision of the Full Court of the Federal Court of Australia turns not on the merits of that decision but on whether the Full Court as constituted had jurisdiction to make it in circumstances where a prior conviction of the appellant formed part of the factual matrix which gave rise to the matter before the Full Court and in circumstances where one of the three judges who constituted the Full Court, when Director of Public Prosecutions of the Commonwealth, had appeared in opposition to an appeal by the appellant against that conviction.
2. Two issues arise. One is whether those circumstances were sufficient to have given rise to apprehended bias on the part of the individual judge. There being no dispute between the parties that an apprehension of bias on the part of one judge must have deprived the Full Court constituted by three judges of jurisdiction to make the decision, the determination of that issue is dispositive.
3. The other issue is whether, objection having been taken during the hearing of the appeal to the jurisdiction of the Full Court as then constituted on the ground of apprehended bias on the part of the individual judge, the objection ought to have been considered and determined by the Full Court or by that judge alone. That issue, although not dispositive, is one of principle, is of general practical importance, has been squarely raised and fully argued, and for those reasons is appropriate now to be determined by this Court.
4. For the reasons which follow, the objection to jurisdiction on the ground of apprehension of bias ought to have been considered and determined by the Full Court rather than by the individual judge alone, ought to have led the Full Court to find apprehended bias, and ought therefore to have been upheld. In the result, the appeal must be allowed. The decision of the Full Court must be set aside, and the matter must be remitted to the Federal Court to be heard and determined by a differently constituted Full Court.

1. The matter before the Full Court was an appeal by the present appellant, who is a citizen of Burkina Faso. The respondents to the appeal were the present respondents, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ("the Minister") and the Administrative Appeals Tribunal ("the AAT"). The appeal was from a decision of a single judge of the Federal Court[1] dismissing an application by the appellant for judicial review of a decision of the AAT. The decision of the AAT had affirmed a decision of a delegate of the Minister not to revoke the cancellation of the appellant's visa.
2. Under the Migration Act 1958 (Cth) ("the Act"), the Minister is obliged to cancel a person's visa if the Minister is satisfied that the person does not pass the "character test" and if the person is serving a full-time sentence of imprisonment[2]. The Act provides that a person does not pass the "character test" if the person has "a substantial criminal record"[3], which exists if the person has been sentenced to a term of imprisonment of 12 months or more[4]. Upon notice to the person and upon representations being made by the person[5], the Minister has a discretion to revoke the cancellation decision if, relevantly, satisfied that there is "another reason" (apart from the person passing the character test) why that decision should be revoked[6]. A decision of a delegate of the Minister made in the exercise of that discretion is reviewable on its merits by the AAT[7].
3. Following a trial on indictment in the County Court of Victoria in 2013, the appellant was convicted of a drug importation offence under the Criminal Code (Cth). He was sentenced to a term of imprisonment of ten years with a non-parole period of seven years. He appealed against his conviction to the Victorian Court of Appeal, which in 2014 dismissed the appeal.
4. In 2017, while the appellant was serving the sentence of imprisonment, a delegate of the Minister made the decision to cancel his visa on the basis that he did not pass the "character test" by reason of the sentence of imprisonment. In 2019, another delegate of the Minister decided not to revoke that cancellation decision. The decision not to revoke the cancellation of the appellant's visa was affirmed by the AAT in 2020. The appellant applied for judicial review of that decision of the AAT and was unsuccessful before the primary judge, leading to the appeal to the Full Court.

1. The application made to the Full Court by counsel for the appellant at the commencement of the hearing, although framed as an application that Bromwich J "recuse himself", was in substance an objection to the Full Court as then constituted hearing and determining the appeal. Was the application appropriately left by McKerracher and Griffiths JJ to be considered and determined by Bromwich J alone? Or should it have been considered and determined by the Full Court constituted by all three of them?
2. Existing authority provides no direct answer. And a survey of the practices of multi-member courts in Australia and in comparable jurisdictions reveals no consistent approach to questions of this kind.
3. Issues as to apprehension of bias on the part of individual Justices sitting as members of Full Courts of this Court have arisen on two occasions in the past 25 years. On neither occasion, however, was an objection pressed to the Full Court as constituted hearing or determining the matter before it.
4. The first occasion arose in relation to Kartinyeri v The Commonwealth[14]. There, an issue of apprehended bias on the part of Callinan J was raised by the plaintiffs informally before his Honour alone in advance of the hearing of the substantive proceeding before the Full Court. His Honour took the view that an apprehension of bias did not arise for reasons which he then published[15]. His Honour went on to sit as a member of the Full Court on the hearing of the substantive proceeding. After the hearing, the plaintiffs filed a notice of motion seeking from the Full Court an order that Callinan J "not further participate in the deliberations of the Court". The notice of motion was the subject of a directions hearing before Brennan CJ, who listed it for hearing before the Full Court and informed the parties that Callinan J did not propose to sit on its return[16]. Brennan CJ also informed the parties that the issue of whether Callinan J should sit on the hearing of the substantive proceeding before the Full Court had been raised with him by Callinan J in advance of that hearing and that "[a]lthough 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"[17]. In the events which subsequently occurred, the hearing of the notice of motion did not proceed and Callinan J did not participate in the determination of the proceeding.

"When the question is raised before a court of limited jurisdiction whether a condition of its jurisdiction has been satisfied, that court is not obliged immediately to refrain from proceeding further. It can and should decide whether the condition is satisfied and whether it has jurisdiction to proceed, but its decision is not conclusive."

1. Thus, an objection to a multi-member court as constituted hearing and determining a matter based on an allegation of bias on the part of one or more of its members (including an objection brought by way of an application for recusal or disqualification) raises a question of jurisdictional fact which that court can and must determine for itself in order to be satisfied of its own jurisdiction. The determination of that question of jurisdictional fact is not antecedent to the performance of the curial function, but part of that function. The determination ought to be reflected in a curial order which embodies the court's formal resolution of the objection, subject to applicable procedures for appeal[46] or review for jurisdictional error[47].
2. In the case of the Full Court of the Federal Court, precisely who constitutes "the court" for the purposes of hearing and determining an appeal is spelt out in the Federal Court of Australia Act 1976 (Cth). Subject to presently immaterial exceptions, the appellate jurisdiction of the Federal Court is required to be exercised by a Full Court[48] consisting of three or more judges sitting together[49]. The making of arrangements about which judges are to constitute the Full Court in a particular matter or class of matters lies within the responsibility of the Chief Justice[50]. The process by which the Chief Justice makes arrangements can be expected to be tailored to minimise the risk of any issue of bias arising on the hearing of a matter, including by allowing a legitimate concern about bias on the part of a judge to be raised and addressed administratively as an aspect of that process. But once a Full Court consisting of three or more judges is constituted and is seized of the hearing of an appeal, responsibility for the discharge of the judicial power involved in hearing and determining the appeal devolves to those three or more judges acting institutionally as the Full Court. The institutional responsibility of the Full Court as so constituted includes the consideration and determination of an objection to its jurisdiction. The Full Court as so constituted has a duty to hear and determine the appeal unless the court as so constituted determines that the objection to jurisdiction is well-founded[51].
3. The view that an allegation of bias on the part of a member of an appellate or collegiate court can and should be considered and determined by the court as distinct from the impugned member alone was cogently developed by Sir Anthony Mason, writing soon after Kartinyeri[52]. Sir Anthony concluded that the court has an institutional responsibility to ensure that it is constituted "in accordance with the provisions of the law governing the judicial process, the exercise of judicial power and natural justice"[53]. He pointed out that that institutional responsibility of the court as constituted was entirely congruent with what then was, and remains, the common practice in Australian courts according to which judges at first instance hear and determine allegations of bias raised against themselves. The rationale for that practice he explained to be that "[a]t first instance, the judge who is the target of the objection determines the objection because [that judge] constitutes the court"[54].

1. The basis on which apprehended bias should have been found remains to be explained.
2. The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority[56] and has often been repeated[57]. The criterion is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide"[58]. The "double might"[59] serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability"[60].
3. Application of the criterion was identified in Ebner[61], and has been reiterated[62], logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
4. Ebner[63] specifically rejected the notion that there exists a category of case, involving some "interest" or "association" on the part of a judge, in respect of which an apprehension of bias will be presumed without needing to undertake such an analysis in order to determine that the criterion is satisfied. The submission by the appellant that this Court should now recognise "incompatibility" between the judicial role and another role previously performed by a judge as a category of "interest" in respect of which an apprehension of bias will be presumed is irreconcilable with Ebner and must be rejected.
5. The reasoning of the plurality in Isbester v Knox City Council[64], upon which the appellant sought to rely for the proposition that an apprehension of bias should be presumed in a case of "incompatibility of roles", is not to be understood as having departed from the analysis in Ebner. That reasoning is rather to be understood as demonstrating that the outcome of the Ebner analysis in some cases may be so obvious as to warrant little or no elaboration. Isbester, where a person who laid charges which resulted in a criminal conviction went on to participate in impugned decision-making concerning a civil consequence of that conviction, was such a case[65]. Dickason v Edwards[66] and Stollery v Greyhound Racing Control Board[67] can be similarly regarded.

1. The Solicitor-General of the Commonwealth, who appeared for the Minister, conceded that it followed from a conclusion of apprehended bias on the part of Bromwich J that the Full Court was deprived of jurisdiction to hear and determine the appeal even though the decision was in fact unanimous. Despite being prepared to concede that bias on the part of one out of three members of a multi-member court was sufficient to deprive the court of jurisdiction, the Solicitor-General sought to reserve to a future case whether bias on the part of one out of, say, five or seven members of a multi-member court would have that effect. The attempted reservation indicates that something needs to be said about the basis on which the concession is correct.
2. Once it is accepted that absence of bias is inherent in the exercise of judicial power and that the jurisdiction of a multi-member court is to be exercised by all of the judges who constitute the court for the hearing and determination of a matter, it becomes apparent that bias on the part of any one of those judges deprives the court as so constituted of jurisdiction to proceed with the hearing and determination of that matter. Where bias on the part of an individual judge is established, that is the end of the jurisdictional inquiry. No numerical exercise is involved. It is not a question of counting apples in a barrel[84]. Nor is it to the point to inquire into whether the outcome of the exercise of jurisdiction by the court as so constituted would or could have been different if the judge was not biased or if the biased judge did not participate.
3. That jurisdictional consequence of bias on the part of any of its members has an important practical dimension for a multi-member court. Each member of the court has an individual duty to give effect to his or her own true view of the facts and applicable law[85]. In the discharge of that duty, however, members of the court can properly be expected to confer together in private in order to obtain the benefit of each other's views and to agree where they can[86]. For the public to be able to have confidence in the outcome of such a closed deliberative process, the public must be confident that each participant in the process is free from bias. The process and the outcome would be tainted were a biased judge "in the room"[87].

1. The appeal should be allowed. The decision of the Full Court should be set aside. The matter should be remitted to the Federal Court to be heard and determined by a differently constituted Full Court. The Minister should pay the appellant's costs of the appeal and of the hearing to date of the appeal to the Full Court.
2. GORDON J. This appeal from the Full Court of the Federal Court of Australia deals solely with the law and procedure of apprehended bias of a judge.
3. The appellant, a citizen of Burkina Faso, was convicted in 2013 of one count of importing a border controlled drug and sentenced to more than 12 months' imprisonment. His appeal to the Court of Appeal of the Supreme Court of Victoria against conviction was dismissed on 21 November 2014. As a consequence of his conviction and sentence of imprisonment, the appellant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) on 8 November 2017. The appellant unsuccessfully sought revocation of the cancellation decision under s 501CA(4) of the Migration Act, merits review of that decision in the Administrative Appeals Tribunal ("the Tribunal"), and judicial review of the Tribunal's decision in the Federal Court of Australia.
4. On appeal, the Full Court of the Federal Court was constituted by McKerracher, Griffiths and Bromwich JJ. On the morning of the hearing on 17 August 2021, Bromwich J's associate emailed the parties to advise that Bromwich J had "appeared for the Crown in the appellant's unsuccessful conviction appeal before the Victorian Court of Appeal on 12 August 2014". The email further stated that "Justice Bromwich does not consider that this is a cause for apprehended bias because that appeal related to a pure legal question, but nonetheless his Honour wishes to raise it with the parties in order that any application for his Honour to recuse himself can be made".
5. At the commencement of the hearing, counsel for the appellant sought the recusal of Bromwich J. The presiding judge, McKerracher J, invited counsel to make submissions, and following those submissions announced that the Court would adjourn to consider what steps to take next. After a brief adjournment, McKerracher J invited Bromwich J to "deal with the application". Bromwich J gave ex tempore reasons for declining to recuse himself. The Court then proceeded to hear the substantive matter and handed down judgment on 15 September 2021, unanimously dismissing the appeal.

Did Bromwich J's involvement in the appeal give rise to a reasonable apprehension of bias?

1. As this Court held in Ebner v Official Trustee in Bankruptcy, a judge is disqualified, subject to qualifications relating to waiver or necessity, "if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide"[88]. The Ebner test has two steps[89]: first, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and second, 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. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed[90].
2. Four aspects of the test are critical to observe. First, it is an objective test: it does not require a conclusion about the judge's actual state of mind or an assertion of actual bias. The principle gives effect to the requirement that justice should both be done and be seen to be done[91].
3. Second, it is a test of possibility, not probability[92] - whether the fair-minded lay observer might reasonably think that the judge might be biased. It has even been said that the fair-minded lay observer is generally taken to be mistaken because decision-makers will rarely be biased in the ways attributed to them, as the observer might have appreciated if fully apprised of the operation of a particular decision‑maker[93]. That said, a finding of apprehended bias is "not to be reached lightly"[94]. In determining whether an apprehension of bias arises, relevant considerations include "the legal, statutory and factual contexts in which the decision is made" and "the nature of the decision ..., what is involved in making the decision and the identity of the decision‑maker"[95].
4. Third, the test is not prescriptive about the ways in which a reasonable apprehension might arise. "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty"[96]. Indeed, the apprehension may not even be of a consciously impartial mind. The test encompasses apprehension of unconscious bias: "the hypothetical observer would recognise that judges are human, not a 'passionless thinking machine' or robot just assessing information"[97].
5. Fourth, the adjective "lay" in relation to the fair-minded observer is critical - "[i]t would defy logic and render nugatory the principle to imbue the hypothetical observer" with the knowledge and professional self-appreciation of a lawyer[98], let alone that of an experienced judge[99]. The fair-minded lay observer is a member of the public because the principle is concerned with maintenance of public confidence in the justice system. "[I]t is the court's view of the public's view, not the court's own view, which is determinative"[100].

1. The fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it was made[101], and the circumstances leading to the decision[102]. The fair-minded lay observer is taken to have "a broad knowledge of the material objective facts", as distinct from a detailed knowledge of the law or of the character and ability of the decision-maker[103]. In considering whether an allegation of apprehended bias on the part of a judge is made out, "the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case"[104].
2. As the test is objective, the state of mind of the judge in question is irrelevant[105]. So too are the reasons for judgment given by the judge ex tempore or published by the judge after the trial[106]. The test turns on the facts and circumstances that might give rise to the apprehension of bias at the time of the hearing and determination[107]. For that reason, Bromwich J's reasons are not within the knowledge of the fair-minded lay observer. The material facts stated by his Honour in his ex tempore reasons should have been provided to the parties in the associate's email or stated in open court during the hearing. That would have allowed the parties to address those facts in their submissions to the Court. It would also have allowed any facts known only to Bromwich J - for example, his level of conscious recollection - to form part of the knowledge of the fair‑minded lay observer, to the extent relevant.
3. In this case, the fair-minded lay observer would have known and understood that his Honour was the Commonwealth Director at the time of the appellant's conviction appeal, and may have inferred that was also the case when the appellant was tried on indictment, convicted and sentenced to more than 12 months' imprisonment. The fair-minded lay observer would understand that the Commonwealth Director had a formal role in the prosecution. In this case, there is no evidence and no basis to infer that the Commonwealth Director had any actual role in the institution or carrying on of the prosecution against the appellant. However, the fair‑minded lay observer would see the Commonwealth Director embodied in the official name in which the appellant was prosecuted and the conviction appeal defended.

What might lead a judge to decide a case other than on its legal and factual merits

1. As the plurality observed in Ebner, "the fundamental principle to which effect is given by disqualification of a judge is the necessity for an independent and impartial tribunal. Concepts of independence and impartiality overlap, but they are not co-extensive"[108]. This case is usefully considered through the lens of independence, as well as impartiality. There are three aspects. His Honour appeared as the Commonwealth Director against a party to the migration appeal - the appellant - in or in relation to an earlier criminal prosecution of the appellant. That criminal proceeding and the migration appeal were related. Finally, and no less significantly, the other party in both the criminal proceeding and the migration appeal was the same - the Commonwealth Executive. That is, Bromwich J had represented the Commonwealth Executive against the appellant - now embodied by the Minister in the migration appeal - in the criminal proceeding.
2. Using Deane J's typology set out in Webb v The Queen[109], the matter might usefully be framed as an issue of incompatibility of roles, or of association between his Honour and the respondent to the migration appeal, or past conduct by his Honour in relation to the appellant. The incompatibility is between the role of an adversary speaking against the appellant and his interests, and the role of sitting in judgment on him in related proceedings. The association is his Honour's association with the Commonwealth Executive in a past case involving the appellant which is connected to the present appeal. The conduct is advocating on behalf of the Commonwealth Executive against the appellant in the earlier proceeding, and now deciding on a related dispute between the Executive and the appellant.
3. This case might also be considered through the concept of interest. That concept is most salient in prosecutor/defendant cases where the decision‑maker was the person who decided to institute, or who carried on, the prosecution. As the plurality held in Isbester v Knox City Council, "a person bringing charges, whether as a prosecutor or other accuser, might be expected to have [an interest] in the outcome of the hearing of those charges"[110]. The interest of a prosecutor or other moving party "may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor's view of guilt or punishment"[111]. As the decision in Isbester demonstrated, that interest does not necessarily end with the prosecution, and may create an apprehension of bias in later decision-making processes in relation to the same person[112]. But in this case, there is no evidence that his Honour instituted or had any actual involvement in the prosecution (as opposed to the conviction appeal).

The logical connection between the matter and the feared deviation from the course of deciding the case on its merits

1. It must be explained how the existence of the incompatibility, association, conduct or interest (or other identified matter) might be thought by the fair-minded lay observer possibly to divert the judge from deciding the case on its merits.
2. In this case, the logical connection is clear - as encapsulated by Gageler J in Isbester, "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 with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person"[113]. The incompatibility is between the adversarial frame of mind or attitude in the earlier proceeding, and the need for a deliberative or adjudicative frame of mind and attitude in the later proceeding.
3. This does not mandate that a judge who was formerly the prosecutor of a party now before the court is per se disqualified. The Ebner test must still be applied. However, in such cases, particularly where there is a connection between the proceedings, it will generally be easy to establish the second limb of Ebner. That connection need not be causal, nor does it require that the proceedings deal with the same subject matter, issues or evidence. The observer does not take an overly technical legalistic approach - the observer is a fair‑minded lay person. The intermediate appellate court authorities of R v Garrett[114], McCreed v The Queen[115] and Muldoon v The Queen[116] should be considered wrong by modern standards - where the later proceeding is also a criminal prosecution, the fact that the judge was formerly the prosecutor of the same defendant in an earlier criminal prosecution will nearly always give rise to a reasonable apprehension of bias. That is because both proceedings are criminal in nature - that is the connection.
4. Here, the Minister submitted that the conviction appeal and the Full Federal Court appeal were not sufficiently connected to give rise to a reasonable apprehension of bias because the subject matters of the two proceedings were "completely different". One was a decision relating to the appellant's migration status; the other a conviction appeal. That submission has an air of unreality - the fair-minded lay observer would clearly see the two proceedings as connected. The second proceeding would never have arisen if not for the Crown's successful defence of the conviction at the conviction appeal. The subject matter of the conviction appeal was the appellant's conviction and the subject matter of the Full Federal Court appeal was the cancellation of the appellant's visa because of that conviction. The observer would understand that the appellant's appeal to the Full Court was the last check on the power and obligation of the Commonwealth Executive under the Migration Act to remove him from Australia as a consequence of his visa cancellation. An apprehension of bias might be more readily made by the fair-minded lay observer where the decision relates to a person's right to be at liberty in Australia.

1. The appellant's first appeal ground was that the Full Court erred by proceeding to hear the appeal after Bromwich J alone, instead of the Full Court, determined the question of apprehended bias raised by the appellant. This ground does not need to be decided. As there was a reasonable apprehension of bias, the Full Court's orders must be set aside. If there had not been a reasonable apprehension of bias, it would have followed that the Full Court would have been properly constituted when it decided the appeal and ground one would not have provided a basis to set aside the Full Court's orders. The procedure for deciding a recusal application might therefore never need to be decided on an appeal to this Court. However, as the Minister accepted, while the matter may not need to be decided, this Court may well decide to address it.
2. It is appropriate to address this appeal ground because the procedure for deciding objections for apprehended bias raises issues that go to the heart of judicial duty, process and, indeed, the protection of impartiality, independence and procedural fairness, all essential characteristics of Ch III courts under the Constitution[119].
3. The practice and procedure for raising apprehended bias and determining objections has historically been informal[120]. The conventional, although not universal, practice in Australia has been that the judge who is alleged to be affected by apprehended bias determines whether they are disqualified irrespective of whether they are sitting as a single judge or on a multi-member court[121].
4. A plurality of this Court in Ebner confirmed that the decision on disqualification being made by the challenged judge is "the ordinary, and the correct, practice"[122]. However, the plurality was there referring to a single trial judge matter. Rightly, their Honours queried, if another judge was to decide the matter, what would be "the power of that other judge to determine the question" and how would "that other judge's conclusion ... find its expression"[123].
5. Sir Anthony Mason said, extra-curially: "[i]n principle there is no compelling reason why the practice followed at first instance should be followed by appellate and collegiate courts. At first instance, the judge who is the target of the objection determines the objection because he constitutes the court. Correspondingly, it can be said that an appellate or collegiate court should determine an objection taken to one of its number sitting"[124].

"Consultations suggested that this is already informally the practice in some appellate courts, and has been explicitly adopted on some occasions[126], and therefore should be formalised. It is also a process that has been adopted by courts in other comparable jurisdictions, including England and Wales[127], New Zealand[128], Northern Ireland[129], Singapore[130], and South Africa[131]."

However, the processes adopted by courts in other jurisdictions are not consistent[132], or even consistent between courts in the same country[133]. And that inevitably raises the next question - are there to be uniform rules and procedures?

1. As this case has demonstrated, a reasonable apprehension of bias in respect of one judge on a Full Court means its jurisdiction - the authority of the whole of the Court to decide - is vitiated[134]. The Court as constituted is required to be and to appear to be independent and impartial: "[i]t is for the court itself to be satisfied that it is so constituted that it will exercise its judicial function impartially and with the appearance of impartiality"[135]. The Court must be satisfied that it has jurisdiction to hear the matter[136]. That is the "first duty" of any court[137].
2. Given the differences in the practices, jurisdiction, level in the judicial hierarchy, composition and work of the various courts, as well as the variety of circumstances and the various stages of a proceeding (from prior to or at the initial allocation of a judge to the matter, all the way through until after the judgment has been handed down) in which the question of an apprehension of bias may arise, there can be no universally applicable rules or procedures.
3. The preferable, if not the proper, course is for the judge in question to be given the opportunity initially to decide for themselves whether they will recuse. This may happen informally at or around the time of allocation of the matter, or it may occur later - for example, after hearing an objection from one of the parties. Only if the judge does not recuse themselves, and an objection is maintained or there are matters that the other judges consider may give rise to a potential for apprehended bias, does the Full Court as a whole need to determine the issue.
4. There are at least three basic reasons why it is appropriate for the judge in question to have the opportunity to initially decide to recuse themselves, without that matter needing to be decided first by the Full Court.
5. First, there are a judge's professional and ethical obligations. A recusal application raises both a matter of professional and ethical obligations for the individual judge and a matter that goes to the Court's jurisdiction as constituted. A judge has a professional obligation to sit on any case allocated to them unless there are grounds for recusal[138]. As the plurality explained in Ebner[139]:

"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. Judges do not choose their cases; and litigants do not choose their judges."

A judge, equally, has a duty not to sit where there is a reasonable apprehension of bias[140]. "[I]n the end the decision to sit or not to sit must rest comfortably with the judicial conscience"[141].

1. Second, there are prudential reasons. It is not improper for a judge to decline to sit without having affirmatively concluded that they are disqualified - in a case of "real doubt", a judge may take the prudent course of deciding not to sit[142]. The procedure adopted should not prevent a judge from taking that prudential (and practical) approach and deciding to recuse themselves in a case of real doubt, even if they and their colleagues on the Court were to ultimately conclude that the judge is not disqualified.
2. Third, there are institutional reasons. A procedure whereby the judge in question deliberates on the matter of their own recusal together with the other judges constituting the Court may appear to lack impartiality and transparency. That may undermine the fundamental principle that the process is directed to preserving - "the necessity for an independent and impartial tribunal"[143], both real and apparent.
3. Institutions - courts - are not uniform. That lack of uniformity - in relation to jurisdiction, level within the judicial hierarchy, composition and method of listings to name just a few matters - may well explain the differences that presently exist in the practices adopted by courts, including courts within a country[144].
4. Adopting and adapting what was outlined and discussed in the ALRC Bias Report, the following are steps that might be taken by a Full Court to identify and address issues of apprehended bias. At the outset, administratively the court might circulate a list of cases among judges before cases are allocated to give the judges an opportunity to raise any concerns[145]. Then when a judge is allocated to a matter, the judge should consider whether there are any facts or circumstances which may give rise to an appearance or concern from litigants or observers that the judge might not be impartial or independent in hearing the matter. The judge may recuse themselves if the judge is of the opinion that they are disqualified, without necessarily involving the other members of the Court allocated to the matter or informing the parties[146]. The judge is free, of course, to consult with the head of jurisdiction and their colleagues[147].
5. If there are facts or circumstances which might give rise to a concern and the judge has not initially decided to recuse, the judge should give notice to the parties to the litigation, even if the judge has formed the view that there is no basis for recusal[148]. That notice should also be provided to the other judges who will constitute the Full Court. The notice should set out the material facts or circumstances and inform the parties that they may wish to object to the judge sitting on the case (and may respond to any objection, if made). Disclosure should generally be made as early as possible before the hearing.

1. For those reasons, I agree with the orders proposed by Kiefel CJ and Gageler J.

This appeal and the ethical responsibility of a judge

1. Justice should appear to be done. But, more importantly, it should be done. Indeed, in the long run, the appearance of justice is something "which courts can attain only by seriously pursuing the reality of justice"[152]. The issue of fundamental principle that arises on this appeal is whether the reality of justice should give way to the appearance of justice by replacing a judge's ethical (and personal) duty to ensure that justice is done with an institutional (and collective) duty to ensure that justice is seen to be done. It should not. Ethics are a lonely affair because they cannot be delegated to a committee.
2. In these reasons, a reference to bias issues is a general reference to both actual bias and apprehended bias, and the judge who is the subject of bias issues is described as the subject judge. The issue of fundamental principle raised by this appeal is as follows: should a subject judge sitting on a multi-member court have the first opportunity - prior to consideration by the court as a whole - to determine whether to recuse themself for bias issues, consistently with their ethical duties? That question should be answered, "yes". In this respect I agree with Gordon J and Steward J, as well as Jagot J (who would confine this opportunity only to the subject judge). That affirmative answer accords with a central rationale, recognised over thousands of years of judicial recusal, from early Jewish[153] and Roman law[154] through the English common law, by which "recusal has been viewed almost exclusively as an issue of judicial ethics"[155].
3. There is an important reason for the qualification, "almost". If the subject judge decides, or continues, to sit as a member of a multi-member court in the face of bias issues, then the court is capable of determining whether it lacks jurisdiction due to the bias issue. When the issue is considered by the court, the ethical question by which the subject judge focuses centrally on whether justice will be done becomes a collective, institutional question that will usually be focused on whether justice will be seen to be done. But basic ethics require that the subject judge have the first opportunity, and a continuing ability, to recuse themself. In this respect, an appropriate court procedure is set out by Gordon J in her Honour's reasons[156].
4. This case concerned an application made in the Full Court of the Federal Court of Australia for one of the three judges sitting on the appeal, Bromwich J, to recuse himself on the ground of apprehended bias. A majority of this Court concludes that the application should properly have been directed, at least initially, to Bromwich J alone rather than to the Full Court as a whole. This conclusion of the majority of this Court is seriously considered obiter dicta. Questions concerning the appropriate court procedure to determine issues of bias are not, and could never be, part of the ratio decidendi of an appeal to this Court. It is only a decision of this Court as to whether actual bias or apprehended bias was present that can resolve the dispute between the parties.

In a multi-member court, who should first decide issues of bias?

1. Issues of bias are commonly divided into actual and apprehended bias. The proper starting point, however, is what is meant by "bias". For the purposes of this appeal, it is convenient to separate bias issues involving a sufficient lack of impartiality from bias issues concerning a lack of independence. The two concepts, partiality and dependence, are commonly treated together, and can overlap. An example is the lack of independence in the roles of the council officer in Isbester v Knox City Council[160] - being responsible for laying charges against a dog owner in connection with an attack by the dog, and also forming part of the panel that recommended that the dog be killed - which gave rise to an apprehension of partiality in her latter role because she "might be expected to have [an interest] in the outcome of the hearing of those charges"[161]. Nevertheless, bias "may not be an adequate term to cover all cases of the absence of independence"[162]. Although some aspects of QYFM's submissions appeared to allege an absence of independence, the proper focus of this appeal is upon QYFM's submissions concerning bias in its core sense of a sufficient lack of impartiality.
2. Actual bias, involving compromised impartiality, presents a threat to actual justice. It requires an "assessment of the state of mind of the judge in question"[163]. If the subject judge's state of mind is sufficiently partial, then justice will not be done. But the only person truly capable of knowing whether actual bias is present in a person's mind is the subject judge: "the devil himself knoweth not the thought of man"[164].
3. There are, however, two reasons why the rules of a legal system concerning bias cannot stop with the subject judge's own assessment of whether they are impartial. First, a judge who is impartial might nevertheless have the appearance of partiality. That appearance of bias might arise even from circumstances independent of the judge such as the bias of, or the appearance of bias in respect of, a person assisting the judge[165]. Even if the judge is not biased, the appearance of bias damages the appearance of justice. And justice is undermined when confidence in justice is undermined[166].
4. Secondly, the subject judge may have unconscious biases which are apparent from their conduct, or the subject judge may have wrongly convinced themself of their own impartiality[167]. As Professor Leubsdorf has said[168]:

"The judge hearing a case knows better than anyone else what she really feels about the parties and issues. She can therefore tell better than others whether she should sit. Yet even honest judges - and disqualification law is not primarily directed at conscious fraud - may be swayed by unacknowledged motives. The most biased judges may be the most persuaded that their acts are just ... [N]o sensible judicial system would leave disqualification entirely to the discretion of the judge in question."

1. Every sensible legal system therefore requires more than a subject judge's own assessment of whether they are actually biased. Issues of actual and apprehended bias can be, and are, objectively assessed by both the subject judge and others. That objective assessment might concern the mere possibility that actual bias would exist in the judge's mind. Or it might be further abstracted from actual bias so that it ceases to be an enquiry centrally focused upon whether justice is done and becomes an enquiry centrally focused upon whether justice is seen to be done.
2. In Australia, the test for an apprehension of bias involves an abstraction upon an abstraction: "it is the court's view of the public's view, not the court's own view, which is determinative"[169]. The person considering the issue does not ask whether they reasonably apprehend that the subject judge might not bring an impartial mind to the issue to be decided. The person asks whether a fair-minded lay observer might have that reasonable apprehension[170].
3. Ultimately, and whether or not the assessment is undertaken by the subject judge or others, the root concern of actual bias and apprehended bias is the same: justice. But each approaches the question of justice from a different perspective. The focus of an enquiry into actual bias is upon whether the judge is sufficiently impartial to permit justice to be done. The focus of an enquiry into apprehended bias is upon whether the judge is seen to be sufficiently impartial so that justice is seen to be done.

Bias issues arising before a single judge in Australia

1. A bias issue (whether actual or apprehended bias) concerns the jurisdiction of the court. Impartiality and independence are so fundamental to the exercise of judicial power that the institutional integrity of a court will, subject to countervailing interests such as waiver or necessity[171], be impaired by a decision maker who is the subject of bias or apprehended bias[172]. As an issue that concerns the jurisdiction of the court, bias must be capable of being addressed by the court.
2. If a bias issue were only an objective question concerned with the jurisdiction of the court, then, like other interlocutory or preliminary issues, including a privilege application or a trial of a separate issue concerning the court's jurisdiction, a different judge from the subject judge could determine that jurisdictional issue. Indeed, if the bias issue were only an objective matter related to jurisdiction it would be very difficult to justify it being determined by the subject judge. When the subject judge is asked to determine that issue they are put in "an invidious position"[173] and made a "judge[] in their own cause"[174]. In the Court of Appeal of England and Wales it has been said that a preferable course may sometimes be for the interlocutory issue of bias to be decided by another judge because it can be "invidious for a judge to sit in judgment on [their] own conduct"[175]. As Sir Stephen Sedley has argued, the paradox of "a judge who is unbiased but might reasonably be thought not to be" should not be replaced with a further paradox of "a judge who, in order to decide whether [they] will be sitting as judge in [their] own cause, has to sit as judge in [their] own cause"[176].
3. Yet, for many years interlocutory issues of bias that arise in a proceeding before a single judge have been assessed, subject to any available appeal or judicial review, by that judge alone[177]. In the United States, subject to regulation or legislation, it has been said to have been the case "for centuries" that only that single judge could decide the issue, a practice said to be "largely unreviewable"[178]. In Australia, the practice of having the issue decided by the subject judge has been held to be the "ordinary, and the correct, practice"[179]. Why?
4. The fundamental reason is the ethical dimension of bias. Issues of bias are not merely concerned with a dimension concerning the jurisdiction of the court or questions of whether justice will be seen to be done. Issues of bias also involve a dimension of ethics concerning whether justice will actually be done. From this perspective, the single judge is the only person who can scrutinise their own knowledge and beliefs: "it is the fundamental ethical duty of every judge to police [their] own disqualification status"[180]. That is a question of "conscience"[181].

Bias issues before judgment in a multi-member court in Australia

1. The same ethical reasons that require a single judge who is the subject of a bias issue to determine issues of bias concerning themself also require a judge sitting in a multi-member court to determine issues concerning their bias, with any recusal application to be directed first to that judge. Justice does not become a dehumanised, automated process that is devoid of ethics merely because the subject judge is sitting with other judges. The subject judge's enunciation of their memory is not required to be treated as eidetic and a perfect documentary record. The subject judge does not suddenly cease to be the only person capable of examining their own conscience to determine whether their mind is partial. The judge's conscience is not melded like a Borg with the conscience of the other members of the court. Rather, the subject judge remains throughout the proceedings under the same ethical duty to recuse themself if they consider that they are biased or are the subject of an apprehension of bias.
2. As with the approach taken where a judge sits alone, where bias issues arise before a multi-member court the "orthodox practice"[188] over many years has been for any application before judgment to be directed to the subject judge and to be decided in the first instance by that judge alone[189]. This approach is consistent with the primacy of the ethical duty.
3. In Australia, after a judge on a multi-member court has assessed issues of bias, if the judge has decided not to recuse themself or if the judge continues to sit then an application based on apprehended bias can be renewed to the court[190]. Even if an application is not renewed, the court might consider the reasons of the subject judge when assessing its jurisdiction[191]. Since issues of bias have a jurisdictional dimension as well as an ethical dimension, the court must also have the ability to make such a collective decision concerning the recusal of one of its own members. If a majority of the court concludes that the member should be recused then that court, as constituted, has no jurisdiction to make orders.
4. The determination by the court as a whole should include the subject judge unless that judge considers that they cannot, or cannot be perceived to, determine the renewed application impartially. Once again, the decision as to whether the judge should sit as a member of the court on a renewed application, or upon a decision following the issue being raised of the court's own motion, is a matter in the first instance for that judge alone.

"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."

In relation to the listing of the renewed application before the Full Court, and again consistently with it being the personal decision of each judge in the first instance whether to sit, Brennan CJ explained that Callinan J had himself decided that he did "not propose to sit on the return of the notice of motion"[201].

Bias issues before judgment on multi-member courts overseas

1. Even in jurisdictions overseas which often recognise issues of bias as being a matter for the entire court to determine, there is no authority to support a practice that would remove the ethical duty of the subject judge, in the first instance, to consider and determine these issues before the issues are considered by the court as a whole. Nor is there any authority that rejects the continuing nature of the ethical duty of that judge. This is unsurprising. Other jurisdictions outside Australia similarly recognise the primacy of ethical duties in assessing bias issues. A survey of other jurisdictions reveals that whilst the jurisdictional dimension of bias is now commonly recognised, no jurisdiction has abandoned the ethical dimension of bias issues, leaving only the jurisdictional dimension. Indeed, where an approach is taken that is different from Australia, such as in general practice in the United States, there has sometimes been a tendency to abandon the jurisdictional dimension, leaving only the ethical dimension[202].
2. In England, in 1998 the Lord Chancellor wrote to Lord Browne-Wilkinson, as senior Law Lord, suggesting that Lord Browne-Wilkinson should ensure that the proposed members of the Appellate Committee of the House of Lords might "consider together whether any of their number might appear to be subject to a conflict of interest; and ... require any Law Lord to disclose any such circumstances [of partiality or the appearance of partiality] to the parties, and not sit if any party objects and the Committee so determines"[203]. The Lord Chancellor did not deny the duty of such a Law Lord to comply first with their ethical responsibility to make such a determination for themself. Nor did the Lord Chancellor deny the continuing nature of this ethical responsibility even if the Committee determined that the judge should sit on the appeal.
3. Consistently with this reasoning, in a subsequent decision of the Court of Appeal of England and Wales, in which the entire Court decided the issue of whether Richards LJ should recuse himself, Clarke MR acknowledged that an anterior decision not to recuse had been made by Richards LJ[204]. There was also no suggestion that Richards LJ was precluded from changing his mind and recusing himself at any time prior to judgment. And in another case before the Court of Appeal, where an applicant sought orders that the entire Court recuse itself due to alleged apprehended bias by Sedley LJ, the application was first decided by Sedley LJ, and when the application was renewed it was decided by the remainder of the Court[205].

1. For these reasons, although the application for recusal was made to the Full Court, with counsel referring throughout his oral submissions on the application to the Court as a whole, the application was properly first addressed by Bromwich J personally. His Honour was correct to address it, personally, prior to any renewed application to the Court or prior to any consideration of the application of the Court's own motion. The ethical issues of bias and apprehended bias that arose were properly, and best, first assessed by Bromwich J himself before any jurisdictional issues were addressed by the Full Court. Ultimately, the application was not renewed to the Full Court and the Full Court did not express any doubts about its jurisdiction based upon any apprehension of bias on the part of Bromwich J.

Background and facts that can be considered on this appeal

1. The decision of the Full Court of the Federal Court, from which the appeal to this Court is brought, concerned QYFM's unsuccessful application at first instance in the Federal Court for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister not to revoke the mandatory cancellation of QYFM's visa under s 501CA(4) of the Migration Act 1958 (Cth).
2. The Tribunal had power to revoke the original decision cancelling QYFM's visa if QYFM passed the character test in s 501 of the Migration Act or if "there [was] another reason why the original decision should be revoked". QYFM had failed the character test in s 501 of the Migration Act because in 2013 he was convicted of one count of importing a marketable quantity of a border controlled drug and was sentenced to more than one year of imprisonment. His appeal against conviction had been dismissed in 2014 by the Court of Appeal of the Supreme Court of Victoria. The record before the Full Court contained the reasons of the Court of Appeal, which show that Mr Bromwich SC appeared as the Commonwealth Director of Public Prosecutions to oppose QYFM's appeal against his conviction.
3. Before the Full Court, QYFM sought leave to amend his grounds of appeal in order to allege that the primary judge should have quashed the Tribunal's decision on the basis that the Tribunal had made jurisdictional errors in determining that there was not "another reason" (apart from his failure of the character test) to revoke the cancellation of QYFM's visa. The jurisdictional errors alleged by QYFM were that the Tribunal's decision was, in various ways, irrational or legally unreasonable, as well as that the Tribunal made findings for which there was no probative evidence. The Full Court granted leave to appeal on the irrationality and legal unreasonableness ground only and unanimously dismissed QYFM's appeal.
4. The appeal to this Court is not an appeal from the decision of Bromwich J not to recuse himself from the Full Court appeal. The recusal decision by Bromwich J was not a decision of the Full Court. The reasons given by Bromwich J for his decision are not reasons that support the orders made by the Full Court. Instead, the appeal that QYFM brings to this Court is from the orders of the Full Court, in particular the order dismissing QYFM's appeal.

The approach to apprehended bias in the United States

1. During the oral hearing of this appeal, questions were asked of the parties, and a direction for further submissions was made by the Chief Justice, concerning authorities in the United States addressing the principles to be applied in cases where a former prosecutor has been sought to be disqualified from adjudicating a case that raised issues relating to that prosecution. The parties complied with that request. Unfortunately, their labours were entirely in vain. The test for apprehended bias, as well as the institutional and substantive context in which issues of bias arise in the United States, is so far divorced from the Australian context that the decisions and reasoning of the United States courts can provide no assistance in drawing factual analogies when applying the Australian test for apprehended bias. As has already been explained in these reasons, even on a matter as fundamental as whether bias has a jurisdictional dimension as well as an ethical dimension, in the absence of a legislative rule some United States courts deny the existence of any jurisdictional dimension.
2. Ultimately the Minister properly acknowledged that in this context the United States legal system draws upon "legal tests and provisions not applicable in Australia". In the United States, the different test for the apprehension of, or "potential" for, bias is shaped or bounded by constitutional considerations[227]. For instance, the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States was central to the Supreme Court of the United States answering the question: was there "an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case"[228]?

1. It is well established that two steps of reasoning must take place before asking whether a fair-minded lay observer might have had a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the case in question[229]. The first step is to identify the subject matter that could give rise to the apprehension of bias: what it is that might lead the judge to decide a case other than upon its legal and factual merits. The second step is to articulate the logical connection between that subject matter and the feared deviation from the course of deciding the case on its merits.

The first step: identify the subject matter of the apprehension

1. The first essential step is to identify the subject matter that could give rise to the apprehension of bias. The central subject matter of an apprehension that Bromwich J might decide the appeal other than upon its legal and factual merits was described by counsel for QYFM in his application to the Full Court as Bromwich J's role as "senior counsel who supported defending [QYFM's] conviction" in QYFM's criminal appeal. In that role, Bromwich J appeared in his capacity as Commonwealth Director of Public Prosecutions pursuant to s 15(1)(c) of the Director of Public Prosecutions Act 1983 (Cth).
2. The offence for which QYFM was convicted was very serious. It involved the importation of cocaine into Australia with a potential wholesale value of $330,000 and a potential street value of $724,250. Although QYFM was not the principal importer, the offence involved a considerable degree of planning in which he was involved. It was undertaken for financial gain. It involved his callous exploitation of his mother-in-law as an innocent agent, by a calculated decision to have her carry drugs from the United Arab Emirates, causing a frightening ordeal for her when she was found by customs agents to be carrying cocaine. He was sentenced to ten years' imprisonment with a non-parole period of seven years.

The second step: identify the connection between the subject matter and the feared deviation

1. The second essential step is to identify the connection between the subject matter of the alleged apprehension of bias and the feared deviation from the course of deciding the case on its merits. In cases where the subject judge has previously been involved in a prosecution of, or an appeal by, the person presently before the court, the connection is generally a loose one involving the potential for negative emotion and antipathy to be felt in respect of that person. In some cases, that emotion and antipathy could arise despite the dispassionate presentation of a purely legal case and despite the training, technique, and oath or affirmation of a judge.
2. In this case, the connection was more than a loose one. The appeal before the Full Court concerned QYFM's application for judicial review of the Minister's refusal to revoke the cancellation of QYFM's visa on character grounds which included his criminal conviction. The connection between QYFM's criminal conviction and the refusal to revoke the cancellation of his visa was not merely that the latter involved issues related to his character. There was a causal connection between the conviction and the refusal to revoke the visa cancellation. The conviction of QYFM was the first step in a process that might ultimately lead to deportation. The second step was the appeal by QYFM to the Court of Appeal. The third step, following the enactment of s 501(3A) of the Migration Act and the Minister's mandatory cancellation of QYFM's visa based on the conviction, was QYFM's application for revocation of that cancellation of his visa. And the final step was QYFM's application for judicial review, and his appeal from that judicial review decision.

Application: a fair-minded lay observer's reasonable apprehension of bias

1. It does not require a resort to legal realism to accept that "[i]f ... 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will ... Interests, points of view, preferences, are the essence of living."[230] Indeed, both the common law and principles of statutory interpretation have often developed by reference to preconceptions concerning very broadly expressed embedded values and recognised principles[231].
2. The presence of bias, or an apprehension of bias, is defined in a narrower way so as to exclude the possibility of underlying general preconceptions, such as having an antipathy to drug importation, or beliefs regarding the effect of drugs on society and the importance of prosecuting drug offences. Those underlying preconceptions reflect generally held, and embedded, values which will not rise to the level of an apprehension of bias unless it is concluded that they are so strongly held by the judge that there is a possibility that the preconceptions might affect a proper application by the judge of the law to the person before the court. The focus is upon how the preconceptions might affect, or be seen to affect, the person before the court.
3. The issue on this appeal concerning apprehension of bias is concerned with the possible application of potential beliefs about QYFM himself, particularly in a context in which there is a causal connection between QYFM's conviction and the subject of the appeal before the Full Court, being the judicial review application concerning the cancellation of QYFM's visa.
4. It can be immediately accepted that, as Steward J carefully sets out in his reasons, the fair-minded lay observer can be taken to know that a judge is a professional whose training and tradition and loyalty to oath or affirmation require discarding of matters that are irrelevant, immaterial, or prejudicial[232]. It can also be accepted that a fair-minded lay observer would be aware that prosecutors are trained and ethically obliged not to strive for a conviction at all costs nor to seek a penalty outside an accepted range. These matters establish that there is no absolute rule that a person who has previously prosecuted an individual for an offence, or has previously sought to defend the individual's conviction as a matter of law, cannot sit on a later proceeding concerning that person merely because an ordinary person might assess that proceeding in light of the previous prosecution or defence.

1. On this appeal, the Minister relied upon three decisions of intermediate appellate courts which demonstrate a similar approach to that taken by Bromwich J on appeal as to when a trial judge should recuse themself from a trial. All of those decisions involve basic errors in reasoning. And in all those cases the result was, and is, wrong.
2. The first of those cases is R v Garrett[234]. In that case, Mr Garrett was convicted after a trial before a judge and jury of rape and false imprisonment. Nearly 12 years earlier, Mr Garrett had been convicted of counts of forceable abduction, rape and assault occasioning actual bodily harm. Mr Garrett appealed from those earlier convictions, principally on grounds of law. His appeal to the Court of Criminal Appeal was dismissed, as was his later application for special leave to appeal to this Court. Counsel for the Crown on the earlier appeal and on the special leave application was the trial judge in the later trial.
3. In the Full Court of the Supreme Court of South Australia, King CJ (with whom Jacobs and von Doussa JJ agreed) held that there was no apprehension of bias for two reasons: (i) there was nothing in the transcript of argument to indicate that the trial judge, as counsel on the earlier appeal and special leave application, "had formed any personal view of the case"; and (ii) disqualification at the late stage of the trial when the issue arose would have caused significant delay and inconvenience[235]. The first of these reasons has little weight, although it might be significant if the trial judge had expressed personal views about the case. The absence of any such expression says little more than that, in a formal court environment and in a case principally concerned with matters of law, counsel did not enunciate any subjective views about Mr Garrett that he might have formed in the course of the appeal or special leave application. The second reason, namely delay and inconvenience, is irrelevant to an assessment of apprehended bias.
4. The second case relied upon by the Minister is McCreed v The Queen[236]. In that case, Mr McCreed was convicted in 1996 of aggravated sexual assault. Nearly 12 years earlier he had been prosecuted for wilful murder. The prosecutor at Mr McCreed's murder trial was the trial judge at Mr McCreed's trial for aggravated sexual assault. In the reasons of Steytler J (with which Malcolm CJ agreed) on appeal to the Full Court of the Supreme Court of Western Australia, his Honour correctly observed that[237]:

"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".

1. Steytler J reasoned, however, that the appeal should be dismissed for two reasons[238]: (i) when the application was made to the trial judge seeking that he disqualify himself, the trial judge said that he had no independent recollection of the circumstances of the prosecution or of the facts giving rise to it, which was unsurprising given the lapse of time (although the application had itself been prompted by the trial judge informing the parties of his role after he had looked at the file concerning the earlier prosecution[239]); and (ii) the sexual offences which were the subject of the appeal bore no relationship to the offence of murder for which Mr McCreed had been prosecuted in the earlier trial.
2. As to the first matter, even assuming that statement to have been in evidence before the Full Court, a fair-minded lay observer would surmise that, by the time of the trial, the trial judge had restored his memory at least to some extent. That memory would be restored at least in part, even if that restored memory might have been limited due to the long delay and might have been dependent on the court file of the murder prosecution, which the trial judge, for some unexplained reason, had taken the time to retrieve from the court records and to examine. The fair-minded lay observer would also apprehend that it is possible that the trial judge's memory of the earlier prosecution might further develop during the trial. Importantly, the relevant matter is not the apprehended state of the trial judge's memory before the bias issues are raised. It is the apprehended state of the judge's possible memory during the trial itself. As to that, the restored memory might have given rise to negative emotions and antipathy towards Mr McCreed, resulting from the trial judge's recollection of his pivotal role as prosecutor, and the extremely serious nature of the offence.
3. As to the second matter, the difference between the earlier and later offences, this distracted from the question that should have been asked by the appellate court, which concerned whether a fair-minded lay observer might conclude that the trial judge might possibly be distracted from an impartial performance of his duties. The recognition by Steytler J that recusal will often be required where a trial judge had previously prosecuted an accused for a serious criminal offence was correctly not qualified by any requirement that the serious criminal offence be of the same nature as the offence being tried. Indeed, a prior prosecution of the same person for a different, but more serious, offence may be more likely to give rise to an apprehension of bias than if both trials are for the same identical, but trivial, offence.

1. The Minister conceded in this Court that any apprehension that Bromwich J was affected by bias would deprive the Full Court of jurisdiction, despite the unanimity of the decision of the Full Court. That concession was properly made.
2. An apprehension of bias in respect of one member of a multi-member bench necessarily results in that court, as constituted, lacking the appearance of justice. A lack of an appearance of justice denies authority - jurisdiction - to any court in one of the most fundamental ways. This applies to every court and every tribunal, irrespective of whether that court or tribunal is constituted by three members or thirty. Because an apprehension of bias negates jurisdiction for a fundamental reason, it is irrelevant that the decision might not have been any different due to the presence of additional judges, such that the decision might remain the same[244].

1. A court cannot have jurisdiction if it is affected by any degree of bias. The possibility that a fair-minded lay observer might have perceived that Bromwich J might not bring an impartial mind to the issues on the appeal was sufficient to deny jurisdiction to the Full Court. I agree with the orders proposed by Kiefel CJ and Gageler J.
2. Part of the first recommendation of the Australian Law Reform Commission in its report on judicial impartiality was that each Commonwealth court should develop and publish guidelines on the process and principles of judicial disqualification[245]. There are a wide variety of possible and proper procedures that each court could develop. But those procedures must be governed by fundamental matters of basic principle. Those matters of basic principle require the preservation of the ethical duty of a judge who is, or might be, the subject of any bias issues. Only once that judge has decided not to recuse themself, or has proceeded on that basis, should a multi-member court, on application or of its own motion, assess the issues of bias as a matter of jurisdiction, consistently with the procedure outlined by Gordon J in her reasons[246].
3. For these reasons, the Full Court was capable of deciding whether a fair-minded lay observer might have had a reasonable apprehension that Bromwich J might not bring a sufficiently impartial mind to the issues raised by QYFM's appeal. The possibility of such an apprehension is a matter affecting the jurisdiction of the Court. As a matter of jurisdiction, it was the duty of all members of the Court to consider the issue, if an application was subsequently brought to the Court or if they had any doubt about their jurisdiction. This jurisdictional issue is usually concerned with apprehended bias and, therefore, the appearance of justice. But I agree with Gordon J, Steward J, and Jagot J that it was both proper and essential that Bromwich J first consider those issues, personally and independently of the other members of the Court. As he did. That consideration reflects a continuing ethical duty that enhances the likelihood of actual justice.
4. The appearance of justice is good. Actual justice is better. Both is the best of all.
5. STEWARD J. For the reasons that follow, Bromwich J was correct in deciding not to recuse himself from sitting as a judge of the Full Court of the Federal Court of Australia in this matter. No fair-minded and reasonable lay observer could possibly have apprehended that his Honour might not bring an impartial and unprejudiced mind to the resolution of QYFM's appeal from a single judge of the Federal Court[247]. I otherwise respectfully agree with Gordon J in relation to her Honour's explanation of the procedure for determining a recusal application. The responsibility of deciding whether a judge should recuse himself or herself lies initially, in accordance with the orthodox practice in Australia, in the hands of that judge.

"The test has two steps. First, one must identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits. What is said to affect a decision-maker's impartiality? Partiality can take many forms, including disqualification by direct or indirect interest in the proceedings, pecuniary or otherwise; disqualification by conduct; disqualification by association; and disqualification by extraneous information. As Deane J said in Webb v The Queen, in relation to disqualification by extraneous information, 'knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias'. Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits. How will the claimed interest, influence or extraneous information have the suggested effect?"

1. In this case the matter said to give rise to the risk of partiality was Bromwich J's prior role as Director of Public Prosecutions for the Commonwealth ("the DPP") and, specifically, his appearance seven years earlier as senior counsel for the Crown in QYFM's appeal against conviction for the importation of cocaine. QYFM has since accepted that he committed that offence, when giving evidence before the Administrative Appeals Tribunal ("the Tribunal") in relation to his application for review of a decision by a delegate of the Minister not to revoke the mandatory cancellation of his visa[249]. The "logical connection", to use the language of CNY17, said to exist between this matter and the risk of partiality was identified as being the relationship between the earlier conviction appeal and the appeal below in the Full Court. Whether that connection existed depended upon the links, if any, between those proceedings and the role Bromwich J played in each. As Gageler J said in Isbester v Knox City Council[250]:

"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'. 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 with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person."

1. Obviously, it is not the case here that Bromwich J sought to be an accuser and a judge in the "same" proceeding. Rather, the issue is whether the two proceedings were "related" in a way or ways that revealed the "logical connection" referred to above. In this case, that turns upon a correct identification of the attributes of the fair-minded lay observer. How much would that observer know and understand about the two roles that Bromwich J performed?
2. In Johnson v Johnson, Kirby J described many of the necessary attributes of the fair-minded lay observer in the following way[251]:

"The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. ... The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. ... Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious."

"The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has 'a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]'."

1. Whilst the hypothetical lay observer is not a lawyer, he or she is taken to have a basic knowledge of the issues to be decided and the nature of the proceedings or process. Even where the applicable statutory scheme is complex, and here the Migration Act 1958 (Cth) might fairly be so described, the lay observer will be taken to "have knowledge of the key elements of that scheme"[253].
2. The lay observer will also have an understanding of the role played by the judge and by counsel. As to the function of the judge, the plurality observed in Johnson v Johnson[254]:

"[T]he person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'."

1. As for the role played by counsel, and in particular by Crown prosecutors, I agree with the observation of Refshauge J in Eastman v Chief Executive Officer of the Department of Justice and Community Safety [No 2] that a lay observer "would understand that prosecutors do not strive for a conviction and do not submit for the most severe sentence"[255]. That is because, consistently with the observations of Kirby J above, a fair-minded lay person "would ordinarily be taken to have sought to be informed" about the role of prosecuting counsel in this country. Here, that would include very general knowledge of the ethical duties attending to the role of prosecuting counsel and the special responsibilities of the DPP, who holds a statutory function as an Agency Head[256].
2. Here, senior counsel for QYFM clothed the hypothetical lay observer with knowledge of the following features in relation to the earlier criminal proceeding: that the prosecution had been instituted by the Office of the DPP (whether Bromwich J was the DPP at this time was not a necessary part of QYFM's case); that it had been commenced in accordance with s 6(1)(a) of the Director of Public Prosecutions Act 1983 (Cth); that the trial of QYFM had been undertaken by junior counsel for the DPP; that the trial was held between 7 October 2013, when QYFM pleaded not guilty, and 27 October 2013, when the jury delivered a guilty verdict; that during that trial, Bromwich J held the statutory office of the DPP; that in December 2013, QYFM was sentenced to ten years' imprisonment with a non-parole period of seven years; that upon sentencing QYFM, a power in the Migration Act for the applicable Minister to cancel QYFM's partner visa[257] was thereby enlivened, but, as that Act then stood, the Minister was not compelled to exercise that power (and did not then do so)[258]; that QYFM applied for leave to appeal his conviction to the Court of Appeal of the Supreme Court of Victoria; that the ground of appeal broadly concerned the use at trial against QYFM of statements, said to be implied admissions, made by him to a Customs officer at Melbourne Airport; that this issue turned upon whether QYFM was at that time a "suspect"[259], and that if the Court so concluded, the appeal would be successful; that QYFM was only given leave to appeal because, at least initially, Priest JA thought this was a "good ground"; that junior counsel for the DPP was led in the appeal by Bromwich J as senior counsel; that Bromwich J presented oral submissions both in his capacity as a senior barrister and as the holder of the statutory office of the DPP; that Bromwich J had "stepped in" to advocate for the dismissal of QYFM's appeal; and that the appeal was dismissed on 21 November 2014.

"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. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case."

1. Nothing has occurred since the foregoing was written in 2000 that has in any way diminished the judge's duty to decide cases allocated to him or her. In that respect, it might have been an easy solution for Bromwich J to have recused himself simply because in the past he had once been involved in QYFM's criminal prosecution. But a judge's duty trumps such a facile observation. If that had ever been a sufficient basis for recusal, it would mean that Bromwich J would necessarily be obliged to recuse himself in respect of any matter involving a party whom his Honour had previously prosecuted, regardless of the nature of the proceeding, and regardless of the circumstances of the previous prosecution. But that is not the law. The issue of recusal relevantly turns upon the particular circumstances of each matter and each previous criminal proceeding, and the need for there to be the "logical connection" described above. Here, for the reasons given, there is no such connection. The two proceedings are entirely distinct.
2. I would dismiss the appeal with costs.
3. GLEESON J. The proper administration of justice requires that a judge be, and be seen to be, an independent and impartial decision maker, able and willing to decide the case before them on its legal and factual merits[273]. Consequently, a judge is disqualified from sitting on any case where they are unable to decide the case on its merits because of actual bias, or where there is a "reasonable apprehension of bias" in relation to that judge[274].
4. QYFM's case is that Bromwich J ("the judge") was affected by a reasonable apprehension of bias that disqualified him from sitting on QYFM's appeal concerning the cancellation of his visa ("visa appeal"). QYFM argued that the reasonable apprehension of bias arose because the public could not see the judge to be an independent decision maker. In this context, "independent" means free from the influence of others. Most prominently, judicial independence is concerned with independence from the Executive arm of government[275], but it also extends to independence from the range of possible influences that might affect a judge's capacity to perform the judicial role in an impartial manner.
5. How is a decision to be made about whether justice will be seen to be done in a particular case? Since the question is concerned with public perceptions, the decision is not made by reference to a judge's own view of the matter[276]. Instead, this Court has developed the principle that a judge will be disqualified from hearing a case where a "fair-minded lay observer" might reasonably apprehend that the judge whose independence or impartiality is challenged might not bring an impartial mind to the resolution of the question that the court is required to decide[277] ("the apprehension of bias principle"). The perspective of this fair-minded lay observer is supposed to avoid a difficulty on the part of some judges to recognise that they might reasonably be perceived to be affected by bias in a particular case. I say more about the fair-minded lay observer below.

The Ebner framework for identifying a reasonable apprehension of bias

1. In Ebner v Official Trustee in Bankruptcy[282], this Court established a framework for the application of the apprehension of bias principle in any case. That framework requires: (1) the identification of "what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and (2) an articulation, and not mere assertion, of a "logical connection between the matter [identified at (1)] and the feared deviation from the course of deciding the case on its merits"[283]. The articulation of the asserted logical connection is necessary to assess the reasonableness of the asserted apprehension of bias from the perspective of the fair-minded lay observer[284].
2. Ebner concerned two cases in which the trial judge had a small shareholding in a bank which either was one of the parties to the litigation or had a financial interest in the litigation[285]. Noting that cases of "interest" and "association" with a party or some other person concerned with the case often overlap[286], the plurality stated that "the question must be how it is said that the existence of the 'association' or 'interest' might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits"[287]. "[T]he bare identification of an 'association' will not suffice to answer the relevant question."[288] Later in their reasons, the plurality reiterated that "[t]he apprehension of bias principle requires articulation of the connection between the asserted interest and the disposition of the cause which is alleged"[289].
3. The framework was applied in Ebner to conclude that the judges' respective shareholdings did not give rise to a reasonable apprehension of bias in either case. The question was approached on the basis that the only factual issue to be explored was whether there was a realistic possibility that the outcome of the litigation would affect the value of the relevant judge's shareholding[290]. In each case, the answer was no. The plurality noted the absence of any suggestion that either judge had any interest in the outcome of the case other than its possible effect on the value of their shares[291].
4. Acknowledging that the question of whether the judge had any interest in the outcome of the visa appeal is not the ultimate question, and that the meaning of "interest" is protean[292], it is nonetheless notable that QYFM did not suggest that the fair-minded lay observer might think that the judge had any specific interest - financial, ideological or otherwise - in the outcome of the visa appeal.

QYFM's principal case: automatic disqualification or presumption of disqualification for apparent want of judicial independence

1. Despite Ebner, QYFM's principal argument was that his case did not require articulation of a logical connection in accordance with the second step of the established framework. Instead, he argued that his case fell into a category of cases preserved by Ebner, to which he referred as "incompatibility of roles", that could be decided by reference to a rule or, at least, a presumption of apprehended bias.
2. The rule proposed by QYFM was that where the prosecutor and accused in one proceeding are judge and party in a second proceeding, and the second proceeding has arisen or resulted in any way from the outcome of the first, the judge must be disqualified for an apparent lack of independence. QYFM proposed that the Ebner framework must be modified in such a case because "the public would just expect independence". In those cases, there was no "need to ... articulate something like the logical connection in the second limb of Ebner". Alternatively, QYFM contended that Isbester v Knox City Council[294] was authority for a presumption that the second step of the Ebner framework is satisfied in those circumstances.

1. Given the way QYFM put his principal case, it is appropriate to say something about judicial independence. The expectation of litigants and the community that a judge will be independent of the parties before the court is axiomatic[295]. Writing extra‑curially, Sir Gerard Brennan explained that judicial independence "must be predicated of any influence that might tend, or be thought reasonably to tend, to a want of impartiality in decision-making"[296]. He acknowledged the possibility of subconscious influences, saying:

"Perhaps the independence that is most difficult for a judge to achieve is independence from those influences which unconsciously affect our attitudes to particular classes of people. Attitudes based on race, religion, ideology, gender or lifestyle that are irrelevant to the case in hand may unconsciously influence a judge who does not consciously address the possibility of prejudice and extirpate the gremlins of impermissible discrimination. Such gremlins are not extirpated by mere declaration. Indeed, too vocal a judicial protest of impartiality may bespeak an overreaction to prejudice in one direction by forming a prejudice in the other. Or it may indicate a failure to employ that worldly wisdom which permissibly takes account of differences that are relevant for some purposes but irrelevant for others."

1. Judicial independence does not demand a mindset of impeccable neutrality[297]. Thus, bias has been described as a "favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess ... or because it is excessive in degree"[298]; and as a "predisposition or prejudice against one party's case or evidence on an issue for reasons unconnected with the merits of the issue"[299].
2. In some circumstances, independence is distinguished from impartiality as a "structural or institutional framework which secures ... impartiality"[300]. A similar distinction was adopted by Kiefel CJ and Gageler J in the context of an administrative decision maker in CNY17 v Minister for Immigration and Border Protection in the following terms[301]:

"The requisite independence is decisional independence, most importantly from influence by the Secretary or the Minister. The requisite impartiality is objectivity in the finding of facts, in the exercise of procedural discretions, and in the application of the applicable legislated criteria for the grant or refusal of a protection visa."

1. This case is far removed from previous cases about incompatible roles, a concept that was first explained by Isaacs J in Dickason v Edwards[302]. In that case, Isaacs J derived a principle from "sets" of cases involving instances of incompatibility whereby[303]:

"if the person whose presence [at deliberations of a judicial tribunal] is challenged can fairly be said to be biassed, either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him from these disqualifications".

1. The instances referred to by Isaacs J concerned the simultaneous occupation of roles[304], that is, where a member of a judicial tribunal was disqualified for incompatibility because they also occupied "some other position which he really [had] in the case"[305]. Related principles are that the same person cannot be accuser and judge in judicial proceedings[306] and that a judge is disqualified from deciding a case to which that judge is a party[307]. A more distantly related principle is that a decision will be affected by apprehended bias where it is made in the presence of a person disqualified from participating in the decision, even though that person did not participate in the deliberations or decision[308].
2. In Dickason, the plaintiff, a member of a friendly society regulated by statute, was accused of insulting the District Chief Ranger of the society[309]. The District Chief Ranger then presided as chairman of the committee which heard the charge brought against the plaintiff, as a result of which the plaintiff was expelled from membership of the society[310]. As the District Chief Ranger was the person "complaining of a grievance", Griffith CJ concluded that the Ranger's membership of the committee that tried the case vitiated the committee's proceedings, even though he did not take any substantive part in the proceedings[311]. O'Connor J considered it "impossible to say, under these circumstances, that the man who was actually the prosecutor, not in the interest of the Society merely, but prosecutor in a charge of using abusive language concerning himself personally, could escape from being reasonably and substantially suspected of bias"[312]. Isaacs J considered that the District Chief Ranger must have "formed a predetermination" about the plaintiff's conduct and was disqualified by reason of that predetermination[313].
3. In Stollery v Greyhound Racing Control Board[314], the manager of a greyhound racing association accused a greyhound owner of attempting to bribe him, and reported the incident to the respondent Board. The manager was also a member of the Board which then held an inquiry in response to his complaint. The manager took no active part in the deliberations, but presented a report at the inquiry and remained in the room while the deliberations and decision took place[315]. This Court unanimously concluded that the Board's decision to disqualify the greyhound owner for 12 months should not be allowed to stand. Barwick CJ, with whom McTiernan J agreed[316], explained that a reasonable person "could very properly suspect that the clear opportunity which [the manager] had for influencing the decision of the Board might well have been used"[317]. Barwick CJ also referred to R v Sussex Justices; Ex parte McCarthy[318], in which the King's Bench Division found a "manifest contradiction" in the "twofold position" of the roles of the deputy clerk to the justices who heard a criminal matter against the applicant arising out of a motor vehicle collision. In that case, the deputy clerk's role required him to retire with the justices to be available to advise them on points of law, while he was also a partner of a firm of solicitors engaged in proceedings for damages against the applicant in respect of the same collision[319].

"[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 with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person."

1. It is significant that this conception was, to Gageler J, limited to the case of an adversary in "the same or related proceedings". There is no reason to apprehend that a former adversary might have the posited frame of mind in some unrelated context. While his Honour did not elaborate on the nature of an adversarial frame of mind, in relation to a prosecutor of the same or related proceedings the reference to "neutrality" is more directed to the question of impartiality than the question of independence. In Isbester, the prosecution of charges against the dog owner was plainly related to the council proceedings concerning the dog's future. In that context, it seems obvious that the fair-minded lay observer might reasonably apprehend that the prosecutor might have a mental outlook that could be characterised as an adversarial frame of mind incompatible with the role of impartial decision maker as to the possible destruction of the very dog whose behaviour had led to the prosecution.

1. As explained by Kiefel CJ and Gageler J, there is no rule of automatic or presumed disqualification for apprehended bias on the basis of incompatible roles, as such a rule would be irreconcilable with Ebner. Ebner states clearly that the general test for apprehended bias applies to "problems of apprehended bias, whether arising from interest, conduct, association, extraneous information, or some other circumstance"[333]. Of course, there will be cases where a reasonable apprehension of bias will readily be found by the application of the two-step framework in Ebner. For example, a judge's personal interest in the outcome of a case will ordinarily result in disqualification because of the obvious possibility that the judge might decide the case in a way that protects or promotes the personal interest. The personal interest provides a logical basis for a fear of bias. The logical connection between the interest and the fear of bias is the general human tendency to act in accordance with one's own personal interests. The fact that the second step of the framework, and the reasonableness of the apprehension, are easily assessed does not mean that it is unnecessary to undertake the analysis.

1. QYFM did not develop an alternative argument that sought to apply the framework established in Ebner. However, his case assumed that the first step in that framework was satisfied by the asserted incompatibility of the judge's role on the visa appeal with his earlier participation in the conviction appeal. As to the second step, and although not explicitly articulated, the logical connection between the asserted incompatibility of the judge's roles and the fear that the judge might not decide the visa appeal on the merits appeared to be that the earlier role gave rise to an apprehension of a lack of independence on the part of the judge from the Minister.
2. QYFM also contended that his case could be articulated by reference to the proposition, stated by Gageler J in Isbester[334], 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 with the exercise of [the requisite] degree of neutrality". This case did not suggest any predisposition towards the Minister's success in the visa appeal; nor a predisposition to be influenced by the Minister in deciding the appeal. Nor was it suggested that the judge had any personal interest in the outcome of the visa appeal, such as a desire to vindicate his earlier success in the conviction appeal[335].
3. Rather, the apprehension concerned an unspecified unconscious bias, or an apprehension that, having appeared against QYFM, the judge might not be able to adopt a mindset of impeccable neutrality. Put in these terms, the apprehension is not about a lack of independence from any party to the visa appeal, or even from any other part of the Executive or the Executive generally. Instead, the feared bias must be said to arise from the fact of the judge's previous association with QYFM through the conviction appeal, leading to a subconscious aversion to QYFM, or an apprehension that, having adopted an adversarial position against QYFM in the past, the judge's attitude towards QYFM might not now be sufficiently dispassionate either generally, or in relation to the issues for decision in the Full Court.

1. The fair-minded lay observer is a construct[336] that is intended to maintain public confidence in the administration of justice and rejects any assumption that the public will accept the subjective opinion of a judge as to whether there is a reasonable apprehension of bias affecting that judge[337]. This assumption is rejected because the public is not assumed to believe that a judge is necessarily the personification of a reasonable person.
2. The construct of the fair-minded lay observer is aimed at precluding a judge from making a subjective or idiosyncratic assessment of a claim of apprehended bias, and in particular an assessment that is predicated upon an "unrealistic knowledge and understanding of the culture and traditions of the legal profession"[338] or "insider's blindness"[339]. Public confidence in the judiciary is not advanced by attributing to the fair-minded lay observer knowledge that ordinary experience suggests would not be known by the lay observer[340].
3. Accordingly, the fair-minded lay observer will not have a detailed understanding of precise ethical rules applying to judges, nor the ethical rules that applied to the relevant judge's prior conduct (such as while acting as counsel). Nor will the fair-minded lay observer know the personal characteristics, experience or expertise of the judge[341], except to the extent that those matters form part of the material objective facts upon which the claim of apprehended bias is to be decided[342]. However, the fair-minded lay observer is attributed a knowledge of the actual circumstances of the case[343]. Further[344]:

"[b]eing reasonable and fair-minded, the [fair-minded lay observer], before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances".

1. From this description, it is apparent that it is difficult to decide the knowledge to be attributed to the fair-minded lay observer. Further difficulties concern the reasoning processes of the fair-minded lay observer. It has been suggested that the fair-minded lay observer (or at least the British equivalent) is "a paragon of balance, virtue and wisdom"[345]. Being fair-minded, the lay observer does not merely reflect public opinion[346], nor do they form an opinion based on matters of general impression.
2. The fair-minded lay observer is expected to make a judgement "in the context of ordinary judicial practice" and is capable of taking into account "the exigencies of modern litigation"[347].
3. However, probably the most important assumption to be challenged by a judge in adopting the perspective of the fair-minded lay observer is that their experience as a "professional judge whose training, tradition and oath or affirmation require [them] to discard the irrelevant, the immaterial and the prejudicial"[348] produces the result that they are "more able than others to resist the likelihood of bias"[349]. The fair-minded lay observer accepts that a judge has that experience, but will be aware that it should not be given undue weight[350]. They will also "be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality"[351].
4. The construct of the fair-minded lay observer does not deny "the reality that it is the assessment of the court dealing with a claim of apparent bias that determines that claim"[352]. In any event, a critical disposition and a cognition of human frailty are points that the fair-minded lay observer[353] and a judge will ordinarily have in common. Both can be expected to be sensitive to the position of the actual party who makes a claim of apprehended bias. Neither can reasonably be taken to think that deference to the judiciary is ingrained in the Australian community. Both can be expected to be cognisant of the possibility of unconscious bias in a judge[354]: Australian judges are now educated on the topic[355]. Both are generally expected to strike an "appropriate balance between on the one hand complacency and naivety and on the other cynicism and suspicion"[356]. In these ways, the fair-minded lay observer construct will not necessarily require the fair-minded judge to adopt a perspective very different from their own. The chief differences between them are that the fair-minded lay observer does not rely on matters that may be known or believed by a judge but not known or believed by a member of the public, and is assumed to avoid "the risk of having the insider's blindness to the faults that outsiders can so easily see"[357].

1. The Ebner framework cannot be applied without first identifying the issues arising in the visa appeal, in respect of which there is an asserted apprehension of bias. The visa appeal concerned the legality of a decision of the Administrative Appeals Tribunal and, more directly, the legality of a decision of a Federal Court judge who had dismissed QYFM's claim that the Tribunal's decision was not made according to law. Accordingly, the visa appeal did not require the Full Court to make any findings of fact. There were two grounds of appeal, which concerned whether: (1) the Tribunal's decision was illogical, irrational and/or legally unreasonable; and (2) the Tribunal made findings for which there was no probative evidence.
2. I agree with Steward J as to the more specific facts on the visa appeal that the fair-minded lay observer can be taken to know. None of them involve matters of knowledge peculiar to the judiciary, or matters beyond the appreciation of the fair-minded lay observer.

Relationship between the judge and the Executive: no apparent lack of independence

1. QYFM argued that the fair-minded lay observer would perceive the judge as a former member of the Executive Government who had performed "the prosecutorial function of the Executive" and, specifically, a role adverse to QYFM's interests in the conviction appeal. He assumed that the observer would not know, or would not find any significance in, the situation of the CDPP as a statutory office holder subject to significant protections around his independence from other members of the Executive[360]. He did not suggest that there was any reason to think that any member of the Executive had ever attempted to influence the judge in any way concerning QYFM, whether about his prosecution, his conviction, his visa appeal or otherwise.
2. QYFM submitted that such an observer would not think that a former CDPP could never be a Federal Court judge but would perceive a lack of independence between the role of "accuser for the Executive" and the role of a judge whose task is to supervise the legality of the decision by the Executive not to revoke the visa cancellation. This claim was remarkably non-specific and failed to identify any existing influence, conscious or unconscious, that might fairly be thought to affect the judge as a result of his former role as CDPP generally, or his participation in QYFM's conviction appeal specifically. Without more, there was no reason for the fair-minded lay observer to conclude that the judge was affected by any possible lack of independence from the parties to the visa appeal or any influence that might affect his disposition of the visa appeal.
3. In any event, the fair-minded lay observer would not perceive either of the judge's roles in the simplistic terms posited by QYFM. Those terms ignore, in the first place, the statutory role of the CDPP and the legal protections of the independence of the CDPP from other members of the Executive; and, in the second case, the statutory role of the Tribunal, the decision of which was under challenge. While the fair-minded lay observer might not have an understanding of the minutiae, general knowledge of these matters is not beyond the appreciation of the fair-minded lay observer.

No reasonable apprehension of bias based on the judge's prior negative association with QYFM

1. As judges are commonly appointed from the legal profession, it is not unusual for a judge to be allocated a case in which a party is a former client. This will particularly be the case for judges who are appointed from the criminal Bar or who were briefed by persons or bodies that form part of the Executive. In that context, issues may arise about whether a judge might have a disqualifying "frame of mind", of the kind described by Gageler J in Isbester[361]. Another issue that may arise is whether a judge has been privy to extraneous information that might improperly influence their decision-making. That was the basis of the application for the judge's recusal before the Full Court, but it was not reagitated in this Court.
2. For the reasons explained above, there was no reasonable basis for an apprehension by the fair-minded lay observer that the judge might have had a predisposition in favour of the Minister. However, it is necessary to ask the obverse question, namely, whether the fair-minded lay observer might reasonably have thought that the judge might have a predisposition against QYFM by reason of their prior association in the conviction appeal.
3. In the absence of any suggested interest on the part of the judge in the outcome of the visa appeal; any prior conduct said to found an apprehension of prejudgement by the judge of the issues in that appeal; or any suggestion that the judge had any extraneous information that might influence his decision-making process, the question comes down to whether the bare fact of the judge's participation in the conviction appeal gives rise to a reasonable apprehension of bias. This requires asking the following question, applying the second step of the Ebner framework: is there a "logical connection" between the judge's participation in the conviction appeal and the feared deviation from the course of deciding the visa appeal on its merits? It is then necessary to consider whether any such connection is reasonable from the perspective of the fair-minded lay observer.
4. The nature of the association between the judge and QYFM was as adversaries. They were adversaries in a conviction appeal in which QYFM failed, and in respect of an offence which QYFM now admits. The sole issue on the conviction appeal was a legal question concerning the admissibility of evidence of that admitted offence. The judge's involvement in the conviction appeal occurred seven years before the visa appeal was listed for hearing. The sentence imposed in respect of QYFM's conviction led to the cancellation of his visa. The visa appeal concerned the legality of a decision of the Tribunal in connection with the visa cancellation, and of the Federal Court on review of that decision, and neither decision raised any issue about the conviction or the conviction appeal. There was no issue on the visa appeal relating to the "wisdom, reasonableness or appropriateness"[362] of the judge's conduct while CDPP, nor of the conviction. All of these matters are knowledge that can reasonably be attributed to the fair-minded lay observer.

1. I would dismiss the appeal with costs.
2. Finally, and noting that it is unnecessary to express an opinion as to the questions raised about the practice of multi-member judicial panels faced with an application for disqualification of one of its members, I prefer not to address those questions in the face of possible law reform.

1. This appeal should be allowed. A member of the bench of the Full Court of the Federal Court of Australia which decided the appeal was subject to a reasonable apprehension of bias. Accordingly, the orders of the Full Court dismissing the appellant's appeal are vitiated. My reasons follow.

1. Judicial decision‑makers must be, and must be seen to be, impartial and independent. These are constitutive elements of the "skeleton of principle"[364] which shapes the common law of Australia. In ensuring that justice is seen to be done, the law insists that the relevant perspective is not that of judges or lawyers. The relevant perspective is that of the "fair‑minded lay observer"[365]. This hypothetical observer is taken to be a representative of the Australian public, the continuing confidence of which in the rule of law is secured, in part, by acceptance that judicial decisions are made by impartial and independent judges doing "right to all manner of people according to law without fear or favour, affection or ill will"[366].
2. The test for apprehended bias is not in doubt. The test is whether "a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide"[367]. If so, the judge is disqualified from deciding the matter.
3. The apparent clarity of the test does not mean that its application in any given case is incontestable. This follows from: (a) the potentially infinite circumstances in which the issue might arise for determination; (b) the fact that the construct of the fair‑minded lay observer functions as a proxy for reasonable members of the public at large, reflecting contemporary values and judgments; and (c) the evaluative boundaries which shape elements of the test, including the construct of the fair‑minded lay observer, the attribution of knowledge to that construct, and the reasonableness of any apprehension of a genuine risk of lack of impartiality or independence in the circumstances.
4. To these considerations must be added other dimensions.
5. A judge who is subject to a reasonable apprehension of bias in respect of a matter is disqualified from deciding that matter. But a judge who is not so disqualified generally has a duty to hear and decide the matters assigned to that judge (referred to as the "duty to sit"[368]). A further part of the judicial oath or affirmation is that the judge must "well and truly serve" the current sovereign, and their heirs and successors. Such service is performed by discharging the functions of judicial office. If, from a judge's too ready acceptance of spurious or ill‑considered applications for disqualification for apprehended bias, a party could influence the constitution of the court, another source of apprehended bias would arise - a prospect which has been described as "intolerable"[369]. Accordingly, judges are mindful that "[d]isqualification on trivial grounds creates an unnecessary burden on colleagues, parties and their legal advisers" and that they must "be careful to avoid giving encouragement to attempts by a party to use procedures for disqualification illegitimately, such as in an attempt to influence the composition of the bench or to cause delay"[370].

The present case - a reasonable apprehension of bias?

1. The primary judge (Kerr J) had dismissed the appellant's judicial review application on 18 December 2020[378]. In that application, the appellant alleged that a decision of the Administrative Appeals Tribunal ("the AAT") was invalid by reason of jurisdictional error because of a lack of procedural fairness. The AAT had affirmed a decision of a delegate of the Minister not to revoke the mandatory cancellation of the appellant's visa, which was consequential on the appellant having been convicted and sentenced to a term of imprisonment of 12 months or more and thereby failing the "character test" under the Migration Act 1958 (Cth).
2. The appellant appealed to the Full Court. On 23 July 2021, the parties were notified of the constitution of the Full Court (McKerracher, Griffiths and Bromwich JJ) for the hearing of the appeal on 17 August 2021[379]. By the time an amended notice of appeal was filed on 2 August 2021, the appellant had legal representation. In all Court documents, as required, the appellant was identified only by pseudonym[380]. The appeal papers included the reasons for sentence of the appellant in the County Court of Victoria and reasons for judgment of the Court of Appeal of the Supreme Court of Victoria dismissing the appellant's appeal against conviction in 2014. The Victorian Court of Appeal had rejected the appellant's contention of wrongful conviction based on the alleged wrongful admission of evidence. This was the conviction that caused the cancellation of the appellant's visa.
3. The judgment of the Victorian Court of Appeal also disclosed that Bromwich J, in his former capacity as the Commonwealth Director of Public Prosecutions, appeared for the respondent, the Crown, defending the appeal. Bromwich J apparently discovered this document on the morning of the hearing. Before this, neither party had communicated to the Full Court any concern about the constitution of the Court.
4. Shortly before the scheduled commencement of the hearing, Bromwich J arranged for an email to be sent to the parties informing them that he "appeared for the Crown in the appellant's unsuccessful conviction appeal before the Victorian Court of Appeal on 12 August 2014". The email said that Bromwich J did not "consider that this [was] a cause for apprehended bias because that appeal related to a pure legal question, but nonetheless ... [wished] to raise it with the parties in order that any application for his Honour to recuse himself [could] be made". This disclosure was necessary and appropriate as the circumstances meant that a genuine question of apprehended bias had arisen, and it was unclear whether the parties were aware of that fact. "[P]arties should always be informed by the judge of facts which might reasonably give rise to a perception of bias or conflict of interest"[381].

1. There is a degree of artifice and unreality in the appellant's contention that the Full Court erred in hearing the appeal "after Bromwich J alone, rather than the Full Court, determined a question of apprehended bias".
2. If Bromwich J was right that no reasonable apprehension of bias arose, the Full Court had jurisdiction to hear and determine the appeal. If not, then, as concluded above, the Full Court did not have jurisdiction to hear and determine the appeal. Accordingly, the question who decides on a multi‑member bench is incapable of affecting the substantive outcome on appeal.
3. The process undertaken by the Full Court in this case reflects a long‑standing convention in Australia and some other common law countries applied to issues of bias (apprehended or actual) in both single judge and multi‑member bench hearings. The determination of any issue of bias by the judge against whom the allegation is raised has been described as the "almost invariable practice"[420] in (at least) Australia and the United States. It has also been said that it is "well established that it is for the judge assigned to hear the matter in the first place to determine whether he or she ought to withdraw on the ground of ostensible bias"[421].
4. It is one thing to acknowledge that this judicial practice has been subject to critical scrutiny by academics[422], law reform bodies[423], and some former judges[424], and even that the convention may no longer be universal[425]. It is another to conclude that a judge or court which adopts this convention has erred in some way.
5. In the keystone authority in Australia of Ebner, when Callinan J raised the issue of a judge other than the judge the subject of the bias allegation deciding the issue[426], four members of this Court described the conventional approach as "correct"[427]. While the context in Ebner was a hearing before a single judge and not a multi‑member bench, if the principle is that the judge the subject of the bias issue must decide (as it was in Ebner), that principle holds good in Australia for a multi‑member bench.
6. The approach the plurality described as "correct" in Ebner also accords with the practice this Court in fact adopted in both Kartinyeri v The Commonwealth[428] and Unions NSW v New South Wales[429]. I will return to these examples below, but the present question concerns the foundation for the view for which the appellant advocated, that this well‑established convention of judicial practice in Australia should now be said to be wrong in respect of multi‑member benches.

1. QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1810. ↑

Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328 at 330-344 [1]-[50]. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328 at 344 [51]. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328 at 344-346 [52]-[61]. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328 at 344 [56]. ↑

Australasian Institute of Judicial Administration, Guide to Judicial Conduct, 3rd ed (2017) at [3.5]. See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 360 [69]. ↑

15. Kartinyeri v The Commonwealth [No 2] (1998) 72 ALJR 1334; 156 ALR 300. ↑

16. Kartinyeri v The Commonwealth [1998] HCATrans 43 (18 February 1998) at lines 30-33. ↑

17. Kartinyeri v The Commonwealth [1998] HCATrans 43 (18 February 1998) at lines 28-30. ↑

19. Unions NSW v New South Wales [2013] HCATrans 263 (5 November 2013) at lines 23-26. ↑

20. Unions NSW v New South Wales [2013] HCATrans 263 (5 November 2013) at lines 53-77. ↑

22. Transcript of Proceedings, Bar Association of New South Wales v Livesey (Court of Appeal of the Supreme Court of New South Wales, Moffitt P, Hope and Reynolds JJA, 22 March 1982) at 1; Transcript of Proceedings, Bar Association of New South Wales v Livesey (Court of Appeal of the Supreme Court of New South Wales, Moffitt P, Hope and Reynolds JJA, 25 May 1982) at 243-244. ↑

24. [2020] FCAFC 212 at [50] (Jagot and Griffiths JJ), [76]-[84] (S C Derrington J). ↑

25. See Olowofoyeku, "Bias in Collegiate Courts" (2016) 65 International and Comparative Law Quarterly 895. ↑

26. Jewell Ridge Coal Corp v Local No 6167 (1945) 325 US 897 at 897. ↑

28. See Schurz Communications Inc v Federal Communications Commission (1992) 982 F 2d 1057 at 1059; In re Bernard (1994) 31 F 3d 842 at 843; Baker & Hostetler LLP v United States Department of Commerce (2006) 471 F 3d 1355 at 1357. ↑

29. Lester, "Disqualifying Judges for Bias and Reasonable Apprehension of Bias: Some Problems of Practice and Procedure" (2001) 24 Advocates' Quarterly 326 at 340. ↑

30. See Arsenault-Cameron v Prince Edward Island [1999] 3 SCR 851. ↑

The Guardian, 18 December 1998 at 7. See also Malleson, "Judicial Bias and Disqualification After Pinochet (No 2)" (2000) 63 Modern Law Review 119 at 126. ↑

Dwr Cymru Cyfyngedig v Albion Water [2008] EWCA Civ 97; Baker v Quantum Clothing Group [2009] EWCA Civ 566. ↑

President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147. ↑

Yong Vui Kong v Attorney General [2012] 2 LRC 439. ↑

TF v Northern Ireland Public Services Ombudsman [2021] NICA 39. ↑

Section 171 of the Senior Courts Act 2016 (NZ). ↑

Courts of New Zealand, Supreme Court Recusal Guidelines at [7]. ↑

Courts of New Zealand, Court of Appeal Recusal Guidelines at [10]. ↑

41. (2000) 205 CLR 337 at 348 [22], 362-363 [79]-[81]. See also North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 162-163 [27]; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 [64], 77 [66]-[67]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at 300 [32], 331 [139]. ↑

43. British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at 333 [146]. ↑

44. Re Nash [No 2] (2017) 263 CLR 443 at 450 [16], quoting Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415. ↑

See Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 450 [81]; Bienstein v Bienstein (2003) 195 ALR 225. ↑

See The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78. ↑

Section 25(1) of the Federal Court of Australia Act 1976 (Cth). ↑

Section 14(2) of the Federal Court of Australia Act 1976 (Cth). ↑

Section 15(1) and (1AA)(a)(i) of the Federal Court of Australia Act 1976 (Cth). ↑

Compare Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348 [19]; Bienstein v Bienstein (2003) 195 ALR 225 at 233 [35]. ↑

Mason, "Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review" (1998) 1 Constitutional Law & Policy Review 21. ↑

Mason, "Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review" (1998) 1 Constitutional Law & Policy Review 21 at 26. ↑

Mason, "Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review" (1998) 1 Constitutional Law & Policy Review 21 at 24. ↑

57. See Charisteas v Charisteas (2021) 273 CLR 289 at 296-297 [11] and the authorities cited in footnote 6. ↑

58. Charisteas v Charisteas (2021) 273 CLR 289 at 296 [11]. ↑

59. CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 87 [18], quoting Islam v Minister for Immigration and Citizenship (2009) 51 AAR 147 at 154-155 [32]. ↑

60. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [7]. ↑

62. Charisteas v Charisteas (2021) 273 CLR 289 at 296-297 [11]. ↑

65. See (2015) 255 CLR 135 at 152 [46], 153 [49]. ↑

67. (1972) 128 CLR 509. See The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262-263. ↑

68. Compare Dickason v Edwards (1910) 10 CLR 243 at 260. ↑

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 88 [21], quoting Webb v The Queen (1994) 181 CLR 41 at 52. ↑

Charisteas v Charisteas (2021) 273 CLR 289 at 299 [21]. ↑

Johnson v Johnson (2000) 201 CLR 488 at 509 [53]. ↑

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8]. ↑

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 90 [28]. ↑

Charisteas v Charisteas (2021) 273 CLR 289 at 297 [12], quoting Johnson v Johnson (2000) 201 CLR 488 at 493 [13]. ↑

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 90 [28]; GetSwift Ltd v Webb (2021) 283 FCR 328 at 338 [35]. ↑

Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 87-88. ↑

79. See Johnson v Johnson (2000) 201 CLR 488 at 508 [52]. See also The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 260; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 351, 368. ↑

Compare McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at 510 [31], 511 [37]. ↑

Perara-Cathcart v The Queen (2017) 260 CLR 595 at 622 [73], citing Mason, "Reflections on the High Court: Its Judges and Judgments" (2013) 37 Australian Bar Review 102 at 110. ↑

Kiefel, "An Australian Perspective on Collective Judging", in Häcker and Ernst (eds), Collective Judging in Comparative Perspective: Counting Votes and Weighing Opinions (2020) 47 at 50-51, 55. ↑

Compare Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 520. ↑

(2000) 205 CLR 337 at 344 [6]. See also CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 98 [56]; Charisteas v Charisteas (2021) 273 CLR 289 at 296-297 [11]. ↑

Ebner (2000) 205 CLR 336 at 345 [8]; Isbester v Knox City Council (2015) 255 CLR 135 at 146 [21]; CNY17 (2019) 268 CLR 76 at 88 [21], 98-99 [57]; Charisteas (2021) 273 CLR 289 at 296 [11]. ↑

Charisteas (2021) 273 CLR 289 at 296-297 [11], citing Ebner (2000) 205 CLR 337 at 345 [8], 350 [30], Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 609-610 [110]-[111] and CNY17 (2019) 268 CLR 76 at 88 [21], 98-99 [57]. ↑

Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at 990 [28]; 179 ALR 425 at 435. ↑

McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at 519 [79], referring to Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411 at 440. ↑

CNY17 (2019) 268 CLR 76 at 98 [56], citing Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371. ↑

Isbester (2015) 255 CLR 135 at 146 [20], [23]. See also CNY17 (2019) 268 CLR 76 at 99 [58]. ↑

Ebner (2000) 205 CLR 337 at 345 [8]. See also CNY17 (2019) 268 CLR 76 at 118 [132]. ↑

GetSwift Ltd v Webb (2021) 283 FCR 328 at 341 [46] (citations omitted). See also CNY17 (2019) 268 CLR 76 at 89‑90 [27]-[28], 97 [51], 107 [92], 108 [97], 118-119 [133]. ↑

Charisteas (2021) 273 CLR 289 at 299-300 [21]. ↑

Johnson v Johnson (2000) 201 CLR 488 at 493 [13]. ↑

101. Isbester (2015) 255 CLR 135 at 146 [23], citing Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 459 [68]. See also Young, "The Evolution of Bias: Spectrums, Species and the Weary Lay Observer" (2017) 41 Melbourne University Law Review 928 at 945-949. ↑

102. Isbester (2015) 255 CLR 135 at 146 [23]; CNY17 (2019) 268 CLR 76 at 99 [58]. ↑

103. Webb (1994) 181 CLR 41 at 73, quoted in CNY17 (2019) 268 CLR 76 at 99 [58]. ↑

105. Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 446 [67]; Isbester (2015) 255 CLR 135 at 156 [61]. ↑

106. Michael Wilson (2011) 244 CLR 427 at 447 [68]. ↑

107. See Michael Wilson (2011) 244 CLR 427 at 447 [68], 448 [73]. ↑

112. (2015) 255 CLR 135 at 151 [42]-[43], 158-159 [68]-[69]. ↑

117. Isbester (2015) 255 CLR 135 at 155 [58], quoting SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [3]. ↑

118. See reasons of Kiefel CJ and Gageler J at [49]. ↑

119. Leeth v The Commonwealth (1992) 174 CLR 455 at 487; Ebner (2000) 205 CLR 337 at 362-363 [79]-[82]; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 [64]; South Australia v Totani (2010) 242 CLR 1 at 157 [428]; Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 71-72 [67]; Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 426 [44]; SDCV v Director-General of Security (2022) 96 ALJR 1002 at 1019 [50], 1030 [106], 1041 [172]; 405 ALR 209 at 221, 236, 251-252. See also R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263; Ebner (2000) 205 CLR 337 at 343 [3]. ↑

121. Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and the Law On Bias, Report No 138 (2021) at 100 [3.54], 231 [7.1], 263 [7.102]. See Appleby and McDonald, "Pride and Prejudice: A Case for Reform of Judicial Recusal Procedure" (2017) 20 Legal Ethics 89 at 90. ↑

Mason, "Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review" (1998) 1 Constitutional Law & Policy Review 21 at 24. ↑

ALRC Bias Report at 263, 265 [7.110]-[7.111]. ↑

See, eg, Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 292; CPJ16 v Minister for Home Affairs [2020] FCAFC 212 at [50]. See also R v Nicholas (2000) 1 VR 356 at 370 [47]-[48]. [Balance of footnote omitted.] ↑

Sengupta v Holmes [2002] EWCA Civ 1104; Baker v Quantum Clothing Group [2009] EWCA Civ 566; Dwr Cymru Cyfyngedig v Albion Water [2008] EWCA Civ 97. ↑

See the judicial recusal guidelines in Appendix G [of the ALRC Bias Report]. ↑

TF v Northern Ireland Public Services Ombudsman [2021] NICA 39. ↑

Yong Vui Kong v Attorney General [2012] 2 LRC 439. ↑

President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147. ↑

See Olowofoyeku, "Bias in Collegiate Courts" (2016) 65 International and Comparative Law Quarterly 895 at 905-912. ↑

See ALRC Bias Report at 575-585 (Appendix G - Recusal Guidelines of New Zealand Courts). ↑

Subject to limited exceptions which do not arise here, including where the party allegedly injured by bias waives their right to object and such waiver is fully informed and clear (see, eg, Michael Wilson (2011) 244 CLR 427 at 449 [76]) or the doctrine of necessity. See also Groves, "Waiver of Natural Justice" (2019) 40 Adelaide Law Review 641 at 650-653; ALRC Bias Report at 101-102 [3.56]‑[3.60]. ↑

Mason, "Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review" (1998) 1 Constitutional Law & Policy Review 21 at 26. ↑

Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442 at 446; The Queen v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 215; New South Wales v Kable (2013) 252 CLR 118 at 133 [31]; Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476 at 492 [64]-[65]; 400 ALR 1 at 17-18. ↑

Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415, quoted in Re Nash [No 2] (2017) 263 CLR 443 at 450 [16]. ↑

See Re JRL (1986) 161 CLR 342 at 352; Bienstein v Bienstein (2003) 195 ALR 225 at 233 [35]. ↑

(2000) 205 CLR 337 at 348 [19]; see also 394 [175]. ↑

141. Australasian Institute of Judicial Administration, Guide to Judicial Conduct, 3rd ed (rev) (2022) at 18. ↑

144. See ALRC Bias Report at 575-585 (Appendix G - Recusal Guidelines of New Zealand Courts). See also, eg, Supreme Court of the United States, Chief Justice's Year-End Report on the Federal Judiciary (2011) at 7-10. ↑

146. ALRC Bias Report at 201 [6.38], 205 [6.51], [6.53]. ↑

147. ALRC Bias Report at 214 [6.86]-[6.87]. See also Australasian Institute of Judicial Administration, Guide to Judicial Conduct, 3rd ed (rev) (2022) at 17. ↑

148. ALRC Bias Report at 206 [6.56]. See also Australasian Institute of Judicial Administration, Guide to Judicial Conduct, 3rd ed (rev) (2022) at 17-18. ↑

152. Leubsdorf, "Theories of Judging and Judge Disqualification" (1987) 62 New York University Law Review 237 at 279. ↑

153. Elon (ed), The Principles of Jewish Law (2007) at 564. ↑

154. G 4.52; J 4.5.pr; D 5.1.15 (Ulpian, Edict, bk 21): The Digest of Justinian, tr ed Watson, rev ed (1998), vol 1 at 166; D 44.7.5.4 (Gaius, Golden Words, bk 3): The Digest of Justinian, tr ed Watson, rev ed (1998), vol 4 at 156; D 50.13.6 (Gaius, Common Matters or Golden Words, bk 3): The Digest of Justinian, tr ed Watson, rev ed (1998), vol 4 at 444. See especially Descheemaeker, The Division of Wrongs: A Historical Comparative Study (2009) at 82. ↑

155. Virelli, Disqualifying the High Court: Supreme Court Recusal and the Constitution (2016) at xii. ↑

157. See, for instance, Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 at [7]. ↑

158. See, eg, Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832 at 852‑854 [100]‑[107]; 393 ALR 551 at 574-576. ↑

159. R v Garrett (1988) 50 SASR 392; McCreed v The Queen (2003) 27 WAR 554; Muldoon v The Queen (2008) 192 A Crim R 105. ↑

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348 [23]. ↑

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 438 [33]. ↑

Ames, "Law and Morals" (1908) 22 Harvard Law Review 97 at 97, citing YB 7 Ed IV f 2 pl 2. ↑

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33 at 58-59 [79], citing Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817. ↑

Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 599. ↑

See CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 108 [97], 111-112 [111]. ↑

Leubsdorf, "Theories of Judging and Judge Disqualification" (1987) 62 New York University Law Review 237 at 277. ↑

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6]. See also Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 609 [110]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at 302 [37], 331 [139]; Isbester v Knox City Council (2015) 255 CLR 135 at 146 [20]; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 87 [17], 96-97 [50]; Charisteas v Charisteas (2021) 273 CLR 289 at 296 [11]; Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33 at 59 [80]. ↑

See SDCV v Director-General of Security (2022) 96 ALJR 1002 at 1054‑1055 [231]; 405 ALR 209 at 268. ↑

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 362-363 [80]-[81]; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 162-163 [27]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at 300 [32]. ↑

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 397 [185]. ↑

Visy Board Pty Ltd v Attorney-General (Cth) (1984) 2 FCR 113 at 174. ↑

El Farargy v El Farargy [2007] 3 FCR 711 at 725 [32]. ↑

Sedley, "When Should a Judge Not be a Judge?" (2011) 33(1) London Review of Books (online edition). ↑

Hammond, Judicial Recusal: Principles, Process and Problems (2009) at 42, 61, 63-64; Appleby and McDonald, "Pride and Prejudice: A Case for Reform of Judicial Recusal Procedure" (2017) 20 Legal Ethics 89 at 89; Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and the Law on Bias, Report No 138 (2021) at 232 [7.7]. ↑

Virelli, Disqualifying the High Court: Supreme Court Recusal and the Constitution (2016) at 5-6, 78. See also Jewell Ridge Coal Corp v Local No 6167 (1945) 325 US 897 at 897; State of Vermont v Hunt (1987) 527 A 2d 223 at 224; In re Bernard (1994) 31 F 3d 842 at 843; Adair v State of Michigan, Department of Education (2006) 709 NW 2d 567 at 581, 588, 589. ↑

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 361 [74]. ↑

Southwestern Bell Telephone Company v Federal Communications Commission (1998) 153 F 3d 520 at 521. ↑

See United States v Snyder (2000) 235 F 3d 42 at 45. ↑

See Appleby and McDonald, "Pride and Prejudice: A Case for Reform of Judicial Recusal Procedure" (2017) 20 Legal Ethics 89 at 96. ↑

Public Utilities Commission v Pollak (1952) 343 US 451 at 467. ↑

See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348 [20]. ↑

Mason, "Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review" (1998) 1 Constitutional Law & Policy Review 21 at 22. ↑

See also Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 450-451 [81]-[83]. ↑

Tarrant, Disqualification for Bias (2012) at 310. ↑

Mann v Northern Territory News (1988) 88 FLR 194 at 194; Bainton v Rajski (1992) 29 NSWLR 539 at 540; Duke Group Ltd (In liq) v Pilmer [No 3] [2001] SASC 215 at [71]; Setka v Gregor [2011] FCAFC 64 at [2]-[4]; Slaveski v Attorney-General (Vic) [2013] VSCA 165 at [6]; Valdez v Frazier [No 3] [2015] FamCAFC 205 at [8]; Brisciani v Piscioneri [No 1] [2016] ACTCA 30 at [1]; Brisciani v Piscioneri [No 2] [2016] ACTCA 24 at [4]; Brisciani v Piscioneri [No 3] [2016] ACTCA 31 at [1]; Amos v Wiltshire [2016] QCA 70 at [1]-[4], [18]; SZVBN v Minister for Immigration and Border Protection [No 2] [2017] FCA 123 at [1]-[2]; SZVBN v Minister for Immigration and Border Protection [No 3] [2017] FCA 126 at [1]-[2]; Jackson v The Queen [2019] VSCA 65 at [5], [34]; Rayney v Western Australia [2020] WASCA 206 at [13]; Rayney v Western Australia [No 2] [2020] WASCA 207 at [1]; Rayney v Western Australia [No 3] [2020] WASCA 209 at [1]; Frugtniet v Secretary, Department of Social Services (2021) 285 FCR 159 at 160 [2]; Wark v Western Australia [No 2] [2023] WASCA 67 at [6]; Wark v Western Australia [No 3] [2023] WASCA 68 at [1]; Masi-Haini v Minister for Home Affairs [2023] FCA 430 at [3]-[7]. See also Erris Promotions Ltd v Commissioner of Inland Revenue (2003) 16 PRNZ 1014 at 1019 [22]. ↑

See, eg, R v Nicholas (2000) 1 VR 356 at 370 [47]-[48]. ↑

CPJ16 v Minister for Home Affairs [2020] FCAFC 212 at [50]. ↑

See Appleby and McDonald, "Pride and Prejudice: A Case for Reform of Judicial Recusal Procedure" (2017) 20 Legal Ethics 89 at 93, discussing Perry v Lean (unreported, Supreme Court of South Australia, 30 September 1985). ↑

Mason, "Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review" (1998) 1 Constitutional Law & Policy Review 21 at 24, 26. ↑

Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415; Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442 at 446; Old UGC Inc v Industrial Relations Commission (NSW) (2006) 225 CLR 274 at 290 [51]; Re Nash [No 2] (2017) 263 CLR 443 at 450 [16]; Federal Commissioner of Taxation v Tomaras (2018) 265 CLR 434 at 477 [132]. ↑

Lester, "Disqualifying Judges for Bias and Reasonable Apprehension of Bias: Some Problems of Practice and Procedure" (2001) 24 Advocates' Quarterly 326 at 340. ↑

Re Toohey; Ex parte Gunter (1996) 70 ALJR 644 at 645; Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 603-604, 610, 636; Re Carmody; Ex parte Glennan (2003) 77 ALJR 1202 at 1203 [6]; 198 ALR 259 at 260. ↑

See Kirby, "Maximising Special Leave Performance in the High Court of Australia" (2007) 30 University of New South Wales Law Journal 731 at 741; Arden and Edelman, "Mutual Borrowing and Judicial Dialogue Between the Apex Courts of Australia and the United Kingdom" (2022) 138 Law Quarterly Review 217 at 229. See also Brennan, "Bench, Composition of", in Blackshield, Coper and Williams (eds), The Oxford Companion to the High Court of Australia (2001) 60 at 61. ↑

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 450 [81]; Bezer v Bassan [2017] NSWCA 333 at [16]. ↑

See, eg, Kartinyeri v The Commonwealth (1998) 195 CLR 337; Unions NSW v New South Wales (2013) 252 CLR 530; Firebird Global Master Fund II Ltd v Republic of Nauru [No 2] (2015) 90 ALJR 270; 327 ALR 192; Northern Territory v Griffiths (2019) 269 CLR 1. ↑

Kartinyeri v The Commonwealth [1998] HCATrans 43. ↑

Kartinyeri v The Commonwealth [1998] HCATrans 43. See also Wewaykum Indian Band v Canada [2003] 2 SCR 259. ↑

Jewell Ridge Coal Corp v Local No 6167 (1945) 325 US 897 at 897‑898. ↑

See Sullivan, "Pinochet Chronology" (2004) 14 Indiana International and Comparative Law Review 415 at 432-433, fn 128. ↑

Dwr Cymru Cyfyngedig v Albion Water [2008] EWCA Civ 97 at [3]. ↑

Baker v Quantum Clothing Group [2009] EWCA Civ 566 at [2]. ↑

Arsenault-Cameron v Prince Edward Island [1999] 3 SCR 851 at 852 [1]. ↑

Arsenault-Cameron v Prince Edward Island [2000] 1 SCR 3. ↑

Wewaykum Indian Band v Canada [2003] 2 SCR 259. ↑

[2012] 2 LRC 439 at 458‑460 [16]-[22], 504 [149]. ↑

[2021] NICA 39 at [26]. See also Sengupta v Holmes [2002] EWCA Civ 1104. ↑

President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147. ↑

President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 at 157 [15]. ↑

President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 at 165-167 [23]. ↑

President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 at 170 [34]. ↑

President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 at 170 [34]. ↑

Courts of New Zealand, Supreme Court Recusal Guidelines (9 July 2020) at [7]. ↑

Courts of New Zealand, Supreme Court Recusal Guidelines (9 July 2020) at [5]. ↑

Courts of New Zealand, Court of Appeal Recusal Guidelines (22 November 2021) at [5], [7]. ↑

Courts of New Zealand, Court of Appeal Recusal Guidelines (22 November 2021) at [10]. See also Courts of New Zealand, Supreme Court Recusal Guidelines (9 July 2020) at [6], "drawing the judge's attention to any additional matters thought relevant". ↑

Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and the Law on Bias, Report No 138 (2021) at 263‑264 [7.103]-[7.104]. ↑

Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and the Law on Bias, Report No 138 (2021) at 264 [7.104]. ↑

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 437-438 [33]. ↑

See Mickelberg v The Queen (1989) 167 CLR 259; Eastman v The Queen (2000) 203 CLR 1. ↑

See Caperton v A T Massey Coal Co Inc (2009) 556 US 868 at 877; Rippo v Baker (2017) 137 S Ct 905 at 907; Isom v Arkansas (2019) 140 S Ct 342 at 343. ↑

Williams v Pennsylvania (2016) 136 S Ct 1899 at 1905. ↑

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8]; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 609 [110]; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 98-99 [57]; Charisteas v Charisteas (2021) 273 CLR 289 at 296‑297 [11]. ↑

In re J P Linahan Inc (1943) 138 F 2d 650 at 651‑652. ↑

Jaensch v Coffey (1984) 155 CLR 549 at 607; Stephens v The Queen (2022) 96 ALJR 871 at 879-880 [33]; 404 ALR 367 at 376. ↑

See reasons of Steward J at [196]-[200]; Johnson v Johnson (2000) 201 CLR 488 at 493 [12], quoting Vakauta v Kelly (1989) 167 CLR 568 at 584-585. ↑

Sengupta v Holmes [2002] EWCA Civ 1104 at [10]. ↑

241. (2008) 192 A Crim R 105 at 110 [28], 119 [49], [50]. ↑

244. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 136-137 [39]-[40], 147-148 [72]; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at 462-463 [85], 478 [164]; 390 ALR 590 at 610-611, 631-632; Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 at 755-756 [76]-[77], 760-761 [98]-[102]; 403 ALR 398 at 420-421, 426-427. ↑

245. Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and the Law on Bias, Report No 138 (2021) at 13. ↑

Johnson v Johnson (2000) 201 CLR 488 at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. ↑

(2019) 268 CLR 76 at 98-99 [57] (footnotes omitted; emphasis added). ↑

QYFM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2161 at [68]-[69] per Senior Member Nikolic. ↑

(2015) 255 CLR 135 at 157 [63] (footnote omitted; emphasis added). ↑

(2000) 201 CLR 488 at 508-509 [53] (footnotes omitted). ↑

(2019) 268 CLR 76 at 99 [58] (footnotes omitted). ↑

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 99 [59] per Nettle and Gordon JJ. ↑

(2000) 201 CLR 488 at 493 [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ (footnote omitted), quoting Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA and Vakauta v Kelly (1989) 167 CLR 568 at 584-585 per Toohey J. ↑

256. Director of Public Prosecutions Act 1983 (Cth), s 27(2)(b); Public Service Act 1999 (Cth), ss 10, 10A, 12, 13 and 14. ↑

257. QYFM had held a Class BC Subclass 100 (Partner) visa. ↑

259. For the purposes of s 23V of the Crimes Act 1914 (Cth), although, it was said, the lay observer's knowledge would not be so detailed as to know the precise provision that was engaged. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1810. ↑

Pursuant to the power conferred by s 501CA(4)(b)(ii) of the Migration Act. ↑

Migration Act, s 499; Direction No 79 - Migration Act 1958 - Direction under section 499 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of visa under s 501CA. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1810 at [51]. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1810 at [57]. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328 at 345-346 [59(2), (5)] per Bromwich J. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328 at 346 [61(4)]. ↑

(2000) 205 CLR 337 at 348 [20] per Gleeson CJ, McHugh, Gummow and Hayne JJ. ↑

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 549 [135] per Kirby J. ↑

See, eg, Livesey v New South Wales Bar Association (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 per Mason J. ↑

273. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6]-[7]; R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259. ↑

Webb v The Queen (1994) 181 CLR 41 at 51-52. ↑

Charisteas v Charisteas (2021) 273 CLR 289 at 296 [11], citing Ebner (2000) 205 CLR 337 at 344 [6] and Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 609 [110]. ↑

Pursuant to s 501(3A) of the Migration Act 1958 (Cth). ↑

Contrary to s 307.2(1) of the Criminal Code (Cth). ↑

Section 501(3A) was inserted by s 2 and Sch 1, item 8 of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). QYFM was taken not to pass the "character test" in s 501(3A) on the basis that he had a "substantial criminal record" (s 501(6)(a)), having been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)). ↑

Relevantly under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). ↑

S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 360. ↑

Brennan, "Judicial Independence", remarks delivered at the Australian Judicial Conference, Canberra, 2 November 1996 (emphasis in original). ↑

See Groves, "Clarity and Complexity in the Bias Rule" (2020) 44 Melbourne University Law Review 565 at 572-579. ↑

Liteky v United States (1994) 510 US 540 at 550 (emphasis in original). ↑

Flaherty v National Greyhound Racing Club Ltd [2005] LLR 571 at 579 [28]. ↑

Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781 at 793 [38]; [2006] 1 All ER 731 at 744. ↑

Dickason (1910) 10 CLR 243 at 259-260, citing R v Milledge (1879) 4 QBD 332, R v Gaisford [1892] 1 QB 381 and Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. ↑

Dickason (1910) 10 CLR 243 at 259; see also 263. ↑

Australian Workers' Union v Bowen [No 2] (1948) 77 CLR 601 at 616. See also Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366 at 379; Frome United Breweries Co v Bath Justices [1926] AC 586 at 606. ↑

Ebner (2000) 205 CLR 337 at 358-359 [59]-[63]. ↑

Sussex Justices [1924] 1 KB 256; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509. ↑

318. [1924] 1 KB 256, cited in Stollery (1972) 128 CLR 509 at 518-519. ↑

325. Isbester (2015) 255 CLR 135 at 157 [63], 158 [68]. ↑

328. Isbester (2015) 255 CLR 135 at 143 [9], 151 [41]. ↑

332. Isbester (2015) 255 CLR 135 at 157 [63] (emphasis added). ↑

333. (2000) 205 CLR 337 at 350 [33]. See also Webb (1994) 181 CLR 41 at 74. ↑

335. cf Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371; Isbester (2015) 255 CLR 135 at 152 [46]. See also CNY17 (2019) 268 CLR 76 at 98 [56]. ↑

336. R v Abdroikov [2007] 1 WLR 2679 at 2706 [81]; [2008] 1 All ER 315 at 341. See also Smits v Roach (2006) 227 CLR 423 at 456 [95]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at 301 [35]; Isbester (2015) 255 CLR 135 at 155 [58]; CNY17 (2019) 268 CLR 76 at 118 [133]. ↑

338. Australian Law Reform Commission, Judicial Impartiality: The Fair-Minded Observer and its Critics, Background Paper JI7 (2021) at 7-10 [27], citing Groves, "The Rule against Bias" [2009] Monash University Law Research Series 10 and Groves, "Bias by the Numbers" (2020) 100 AIAL Forum 60 at 65. See also 7-10 [28], citing Gillies [2006] 1 WLR 781 at 793 [39]; [2006] 1 All ER 731 at 745. ↑

339. Gillies [2006] 1 WLR 781 at 793 [39]; [2006] 1 All ER 731 at 745. ↑

341. Charisteas (2021) 273 CLR 289 at 297 [12], citing Johnson v Johnson (2000) 201 CLR 488 at 493 [13]. ↑

343. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 23. ↑

345. Olowofoyeku, "Bias and the Informed Observer: A Call for a Return to Gough" (2009) 68 Cambridge Law Journal 388 at 393. See also Smits v Roach (2006) 227 CLR 423 at 457 [96]; British American Tobacco (2011) 242 CLR 283 at 306 [48]. ↑

348. Johnson (2000) 201 CLR 488 at 493 [12], citing Vakauta v Kelly (1988) 13 NSWLR 502 at 527 and Vakauta v Kelly (1989) 167 CLR 568 at 584-585. ↑

349. Australian Law Reform Commission, Judicial Impartiality: The Fair-Minded Observer and its Critics, Background Paper JI7 (2021) at 7-10 [29]. ↑

350. Wilson (1996) 189 CLR 1 at 23. See also Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87-88, referring to Vakauta v Kelly (1989) 167 CLR 568. ↑

352. British American Tobacco (2011) 242 CLR 283 at 306 [48]. ↑

Including through publications such as Australasian Institute of Judicial Administration, Guide to Judicial Conduct, 3rd ed (rev) (2022) at 11-18. ↑

Abdroikov [2007] 1 WLR 2679 at 2706 [81]; [2008] 1 All ER 315 at 342. ↑

Gillies [2006] 1 WLR 781 at 793 [39]; [2006] 1 All ER 731 at 745. ↑

S & M Motor Repairs (1988) 12 NSWLR 358 at 372. ↑

S & M Motor Repairs (1988) 12 NSWLR 358 at 372-373. ↑

See Director of Public Prosecutions Act 1983 (Cth), especially ss 7 and 8. ↑

cf Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 91. ↑

Libke v The Queen (2007) 230 CLR 559 at 586 [71]; HT v The Queen (2019) 269 CLR 403 at 428 [59]. ↑

Mabo v Queensland [No 2] (1992) 175 CLR 1 at 29. ↑

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ("Ebner") at 344 [6]. ↑

These are part of the terms of the judicial oath: see, eg, s 11 of the Federal Court of Australia Act 1976 (Cth) and the Schedule to that Act, and s 11 of the High Court of Australia Act 1979 (Cth) and the Schedule to that Act. ↑

368. Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. ↑

Australasian Institute of Judicial Administration, Guide to Judicial Conduct, 3rd ed (rev) (2022) at 12. ↑

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 87 [18]. ↑

Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294. ↑

Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. ↑

Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371. ↑

Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294, citing Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 16; 32 ALR 47 at 54. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1810. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328 at 346 [60]. ↑

Section 91X of the Migration Act 1958 (Cth). ↑

Australasian Institute of Judicial Administration, Guide to Judicial Conduct, 3rd ed (rev) (2022) at 12. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328 at 346 [60]. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328 at 346 [61]. ↑

390. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). ↑

396. Ebner (2000) 205 CLR 337 at 348-351 [22]-[37]. ↑

397. Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294. ↑

398. Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294. ↑

400. (2000) 205 CLR 337 at 345 [8], 348-351 [22]-[37]. ↑

401. Whitehorn v The Queen (1983) 152 CLR 657 at 663-664. ↑

402. Libke v The Queen (2007) 230 CLR 559 at 586 [71], citing Randall v The Queen [2002] 1 WLR 2237 at 2241, in turn citing R v Puddick (1865) 4 F & F 497 at 499 [176 ER 662 at 663] and R v Banks [1916] 2 KB 621 at 623. ↑

403. Libke v The Queen (2007) 230 CLR 559 at 586 [71], quoting Richardson v The Queen (1974) 131 CLR 116 at 119. ↑

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 90 [28]. ↑

Webb v The Queen (1994) 181 CLR 41 at 73. See also Johnson v Johnson (2000) 201 CLR 488 at 493 [13]. ↑

Johnson v Johnson (2000) 201 CLR 488 at 493 [12], quoting Vakauta v Kelly (1988) 13 NSWLR 502 at 527, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584-585. ↑

Isbester v Knox City Council (2015) 255 CLR 135 at 146 [23]. ↑

Johnson v Johnson (2000) 201 CLR 488 at 493 [13]. ↑

Dickason v Edwards (1910) 10 CLR 243 at 259. See also Ebner (2000) 205 CLR 337 at 359 [62]; Isbester v Knox City Council (2015) 255 CLR 135 at 149-153 [34]-[49]. ↑

Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 519, citing R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259. ↑

415. McCreed v The Queen (2003) 27 WAR 554 at 561 [17]; R v Garrett (1988) 50 SASR 392 at 400. ↑

North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 162-163 [27]-[29], citing Ebner (2000) 205 CLR 337 at 363 [81], 373 [116]. ↑

Appleby and McDonald, "Pride and Prejudice: A Case for Reform of Judicial Recusal Procedure" (2017) 20 Legal Ethics 89 at 90. ↑

Perry, Disqualification of Judges: Practice and Procedure, Australasian Institute of Judicial Administration Discussion Paper (2001) at 22 [2.39]. ↑

eg, Olowofoyeku, "Bias in Collegiate Courts" (2016) 65 International and Comparative Law Quarterly 895; Appleby and McDonald, "Pride and Prejudice: A Case for Reform of Judicial Recusal Procedure" (2017) 20 Legal Ethics 89. ↑

Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and the Law on Bias, Report No 138 (2021) at 234-240 [7.12]-[7.32], 263-270 [7.102]-[7.125]. ↑

Mason, "Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review" (1998) 1 Constitutional Law & Policy Review 21; "Senior law lord told to make sure embarrassment is not repeated", The Guardian, 18 December 1998 at 7. ↑

See, eg, fnn 33 to 39 in the reasons of Kiefel CJ and Gageler J. ↑

[1998] HCATrans 43 (18 February 1998) at lines 28-30; Kartinyeri v The Commonwealth [No 2] (1998) 72 ALJR 1334; 156 ALR 300. ↑

[2013] HCATrans 263 (5 November 2013) at lines 53-77. ↑

For example, under the Federal Court of Australia Act 1976 (Cth) a Full Court of the Federal Court "consists of 3 or more Judges sitting together" (s 14(2)) and the appellate jurisdiction of the Court must be exercised by a Full Court subject to immaterial exceptions (s 25(1)). ↑

Jewell Ridge Coal Corp v Local No 6167 (1945) 325 US 897 at 897. ↑

eg, GetSwift Ltd v Webb (2021) 283 FCR 328 at 330 [1]; cf Mason, "Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review" (1998) 1 Constitutional Law & Policy Review 21 at 22. ↑

Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at 466-467. ↑

435. Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. ↑

Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. ↑

eg, s 23 of the Judiciary Act 1903 (Cth); s 16 of the Federal Court of Australia Act 1976 (Cth). ↑

Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294, citing Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 16; 32 ALR 47 at 54. ↑

cf Mason, "Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review" (1998) 1 Constitutional Law & Policy Review 21 at 22; see also Campbell, "Review of Decisions on a Judge's Qualification to Sit" (1999) 15 Queensland University of Technology Law Journal 1 at 3-4. ↑

Re Nash [No 2] (2017) 263 CLR 443 at 450 [16], quoting Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415. ↑

s 16 of the Federal Court of Australia Act 1976 (Cth). ↑

eg, CPJ16 v Minister for Home Affairs [2020] FCAFC 212 at [50]. ↑

445. Kartinyeri v The Commonwealth [No 2] (1998) 72 ALJR 1334 at 1334-1336 [1]-[26]; 156 ALR 300 at 300‑304. ↑

446. Australasian Institute of Judicial Administration, Guide to Judicial Conduct, 3rd ed (rev) (2022) at 18. ↑

447. Johnson v Johnson (2000) 201 CLR 488 at 493 [13]. ↑