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

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

QYFM  APPELLANT

AND

MINISTER FOR IMMIGRATION, CITIZENSHIP,
MIGRANT SERVICES AND MULTICULTURAL
AFFAIRS & ANOR  RESPONDENTS

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

[2023] HCA 15

Date of Hearing: 13 December 2022
Date of Judgment: 17 May 2023

M53/2022

ORDER

1. Appeal allowed.

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.

On appeal from the Federal Court of Australia

Representation

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)

Submitting appearance for the second respondent

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

CATCHWORDS

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.

   Background to the appeal

5. 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.

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

6. 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].

   [2]Section 501(3A) of the Act.

   [3]Section 501(6)(a) of the Act.

   [4]Section 501(7)(c) of the Act.

   [5]Section 501CA(3) and (4)(a) of the Act.

   [6]Section 501CA(4)(b)(ii) of the Act.

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

7. 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.

8. 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.

9. The appellant was unrepresented before the primary judge and at the time of filing the original notice of appeal from the decision of the primary judge to the Full Court. The appellant subsequently obtained legal representation, resulting in a written application to the Full Court for leave to amend the notice of appeal to raise grounds which had not been advanced before the primary judge. The proposed grounds were to the effect that the decision of the AAT was legally unreasonable and that certain findings of the AAT were not supported by probative evidence. The application for leave to amend was listed for hearing at the time scheduled for hearing of the appeal.

10. The appeal was scheduled to be heard on the morning of 17 August 2021 before a Full Court constituted by McKerracher, Griffiths and Bromwich JJ. It is a matter of public record that, from 2012 until his appointment to the Federal Court in 2016, Bromwich J held the office of Director of Public Prosecutions under the Director of Public Prosecutions Act 1983 (Cth).

11. Minutes before the commencement of the hearing on that day, the associate to Bromwich J sent an email to the legal representatives of the parties. The email stated that his Honour had asked the associate to advise the parties that he had appeared for "the Crown" in the appellant's unsuccessful conviction appeal in the Victorian Court of Appeal in 2014. The fact that his Honour had appeared as senior counsel for the respondent in that appeal was apparent from the record of the decision of the Victorian Court of Appeal, which was included in the appeal book for the Full Court proceedings. The email said that his Honour did not consider that circumstance to give rise to an apprehension of bias as the appeal "related to a pure legal question" but nonetheless wished to draw it to the attention of the parties "in order that any application for his Honour to recuse himself" could be made.

12. At the commencement of the hearing of the appeal before the Full Court, counsel for the appellant announced that he had instructions to apply for Bromwich J "to recuse himself". Counsel for the appellant proceeded to make that application orally, relying solely on the circumstances disclosed in the email. At the conclusion of the oral submissions of counsel for the appellant there was a short adjournment, following which the Full Court reconvened.

13. Upon the Full Court reconvening, McKerracher J invited Bromwich J to "deal with the application". Bromwich J explained that he declined to recuse himself from sitting on the appeal for reasons he proceeded to elaborate. McKerracher J then invited counsel for the appellant to continue and the hearing resumed. At the conclusion of the hearing, the Full Court reserved its decision.

14. The decision of the Full Court was delivered on 15 September 2021[8]. By that decision, the Full Court granted the appellant leave to rely on the ground that the decision of the AAT was legally unreasonable, refused the appellant leave to rely on the proposed ground that findings of the AAT were not supported by probative evidence, and dismissed the appeal.

    [8]QYFM v Minister for Immigration, Citizenship, Migrant Services and MulticulturalAffairs (2021) 287 FCR 328.

15. Joint reasons for judgment then published by McKerracher and Griffiths JJ comprehensively addressed the merits of the application for leave to amend the notice of appeal and the appeal[9]. Those reasons said nothing about the application which had been made orally at the hearing.

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

16. In separate reasons for judgment, Bromwich J agreed with McKerracher and Griffiths JJ as to the merits[10] and went on to recapitulate the reasons he had given during the hearing for considering that the circumstances outlined in the email from his associate did not give rise to an apprehension of bias[11]. Those reasons, in essence, were that: as Director of Public Prosecutions his practice was to appear only in appeals which raised issues of principle; the appellant's appeal against conviction to the Victorian Court of Appeal was an appeal of that character, turning wholly on a legal question as to the admissibility of evidence; by virtue of his appearance in that appeal, he had acquired no knowledge of the criminal history of the appellant beyond that which was apparent to all members of the Full Court from the record of the decision of the Victorian Court of Appeal contained in the appeal book for the Full Court proceedings; the fact of the conviction was not in issue in the appeal before the Full Court, it being common ground that the appellant failed the "character test"; and the contents of the decision of the Victorian Court of Appeal did not feature in the appeal before the Full Court in any way, the record of that decision having been included in the appeal book only because it had been part of the material which had been before the AAT.

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

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

17. His Honour also made clear what was in any event to be inferred from the timing of his associate's email: that he had only noticed that he had appeared in the conviction appeal during the course of his final preparation on the morning of the hearing before the Full Court on 17 August 2021[12]. His Honour acted prudently in accordance with standard judicial practice by promptly notifying the parties of circumstances properly recognised by him to have the potential to be seen to give rise to an apprehension of bias[13].

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

    [13]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].

    The Full Court should have decided the objection

18. 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?

19. 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.

20. 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.

21. 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.

    [14](1998) 195 CLR 337.

    [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.

22. The second occasion arose in relation to Unions NSW v New South Wales[18]. There, senior counsel for an intervenor stated at the commencement of the hearing before the Full Court that he needed to draw to the Full Court's attention that "a member of the Court in a previous capacity" had given advice which "touched on" an issue in the proceeding[19]. No application was made, and no objection was raised. The Full Court adjourned. Upon resuming, Gageler J announced that he proposed to recuse himself from the hearing for the reasons he then gave[20]. The hearing continued in his absence.

    [18](2013) 252 CLR 530.

    [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.

23. In neither of the foregoing instances was it necessary for the Full Court of this Court to consider any objection to the Justice in question hearing or determining the matter because each recused himself before any such occasion could arise. The most that can be generalised from those sequences of events is the existence of a practice whereby individual Justices of this Court have been accepted by their colleagues to have the capacity to recuse themselves from the hearing or determination of a matter upon becoming satisfied of an apprehension of bias on their part, whether before or after the commencement of a hearing. To note this institutional practice of collective acquiescence in unilateral recusal, however, is not to answer the question at hand.

24. Procedures adopted by intermediate courts of appeal in Australia when dealing with objections to one or more of their members hearing or determining or continuing to hear or determine a matter on the basis of apprehension of bias have varied between and even within those courts. In the events which led to the decision of this Court in Livesey v New South Wales Bar Association[21], for example, objections to two out of three members of the Court of Appeal of New South Wales hearing and determining a matter were raised at the commencement of a scheduled hearing and renewed during that hearing. Each of those objections was considered and rejected by all three members of that Court[22]. In Bainton v Rajski[23], in contrast, discrete objections to two out of three members of the Court of Appeal of New South Wales hearing and determining a matter were determined discretely by each of the two members concerned, with the third expressing no opinion. The approach adopted by the Full Court of the Federal Court in the decision under appeal can similarly be contrasted with that adopted by a differently constituted Full Court of that Court several months earlier in CPJ16 v Minister for Home Affairs[24], where reasons given by S C Derrington J for refusing to recuse herself were specifically agreed to by Jagot and Griffiths JJ.

    [21](1983) 151 CLR 288.

    [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.

    [23](1992) 29 NSWLR 539.

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

25. Internationally, a diversity of approaches has also been evident[25]. At one extreme has been the view famously expressed by Jackson J (with the concurrence of Frankfurter J) that a complaint about the participation of an individual Justice of the Supreme Court of the United States "is one which cannot properly be addressed to the Court as a whole"[26]. Conformably with that view, the federal statute, first enacted in 1948, which now provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned"[27] has been interpreted to require any disqualification decision to be made by the individual judge concerned and none other[28]. The Supreme Court of Canada has taken the approach that an application for recusal, although raised and argued before the Court as a whole[29], was appropriately determined solely by the individual Justice whose recusal was sought[30]. At the other extreme has been the view expressed by the Lord Chancellor of England (Lord Irvine) in an open letter to the Senior Law Lord (Lord Browne-Wilkinson), in the wake of R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [No 2][31], "that [Lord Browne-Wilkinson], or the law lord in the chair, [should] ensure at the time when any committee is being composed to hear an appeal, that its proposed members consider together whether any of their number might appear to be subject to a conflict of interest; and in order to ensure the impartiality, and the appearance of impartiality, of the committee, require any law lord to disclose any such circumstances to the parties, and not sit if any party objects and the committee so determines"[32]. Each of the Court of Appeal of England and Wales[33], the Constitutional Court of South Africa[34], the Court of Appeal of Singapore[35], and the Court of Appeal in Northern Ireland[36] has acted on the view that an objection to one of its members sitting was appropriately determined by the entirety of the court as constituted. Varying approaches are adopted in recusal guidelines published pursuant to statute in New Zealand[37]. The guidelines published by the Supreme Court of New Zealand require an objection to be determined by all available judges other than the judge who is the subject of the objection[38]. The guidelines published by the Court of Appeal of New Zealand provide for an objection to be determined by the panel of judges allocated to the hearing of an appeal including the impugned judge unless the President otherwise directs[39]. Ultimately, differences in constitutional structure, legislative instruction, and institutional experience render comparative analysis of limited utility.

    [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.

    [27]28 USC §455.

    [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.

    [31][2000] 1 AC 119.

    [32]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.

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

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

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

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

    [37]Section 171 of the Senior Courts Act 2016 (NZ).

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

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

26. The question arising in the circumstances of the present case falls to be resolved at the level of principle within the framework established in Ebner v Official Trustee in Bankruptcy[40]. Foundational to that framework are two propositions. One is that impartiality is an indispensable aspect of the exercise of judicial power[41]. The other is that "[b]ias, whether actual or apprehended, connotes the absence of impartiality"[42]. Leaving to one side exceptional circumstances of waiver or necessity[43], an actuality or apprehension of bias is accordingly inherently jurisdictional in that it negates judicial power.

    [40](2000) 205 CLR 337.

    [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].

    [42](2000) 205 CLR 337 at 348 [23].

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

27. Once the jurisdictional significance of bias is appreciated, it becomes apparent that responsibility for ensuring an absence of bias – whether actual or apprehended – lies with a court as an institution and not merely with a member of that court whose impartiality might be called into question. The duty, indeed the "first duty"[44], of any court is to be satisfied of its own jurisdiction. The upshot of that duty, as elaborated by Gibbs J in The Queen v Federal Court of Australia; Ex parte WA National Football League[45], is that:

    "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."

    [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.

    [45](1979) 143 CLR 190 at 215.

28. 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].

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

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

29. 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].

    [48]Section 25(1) of the Federal Court of Australia Act 1976 (Cth).

    [49]Section 14(2) of the Federal Court of Australia Act 1976 (Cth).

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

    [51]    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].

30. 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].

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

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

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

31. To require an allegation of bias on the part of a member of a multi-member court to be considered and determined by the court as constituted should not be thought to place an undue strain on judicial collegiality. In the context of explaining the appropriateness of appellate review of non-recusal decisions, it was emphasised in Livesey[55] that the determination of questions of apprehended bias can involve evaluations of degree on which reasonable minds might differ and that a conclusion of apprehended bias on the part of an individual judge implies no criticism of that judge. As for sensitivities between judges at different levels of the judicial hierarchy, so for sensitivities between judges within a multi-member court.

    [55] (1983) 151 CLR 288 at 294.

32. If, upon objection being taken, a procedure is followed according to which the judge in question places his or her knowledge of all relevant facts on the record at the outset, there is no reason why the requisite evaluative judgment ought not be formed by each judge of a multi-member court on the totality of the evidentiary material before that court. The judge's state of mind itself being a question of fact, there is also no reason why the same procedure should not be adopted in the unusual (and ordinarily unnecessary and inappropriate) event of an objection being made on the ground of actual bias. In such an event, the determination of the objection would remain for the court even though the disclosure by the judge in question of his or her state of mind would in practice resolve the question of jurisdictional fact as to whether or not actual bias existed.

33. Nor is there any reason why the judgment of the majority of the multi-member court should not prevail in the event of disagreement on an issue of apprehended bias as it would in the determination of any other issue before the court. The potential for a judge persuaded of apprehended bias on their own part to find themselves in the minority, and so to find themselves duty-bound by the decision of the majority to hear and determine a matter contrary to their own judgment, cannot be gainsaid. But a potential of that kind will arise in relation to any jurisdictional objection. Moreover, the predicament of a judge persuaded of apprehended bias on their own part finding themselves bound by the decision of the majority is little different from the predicament of a judge persuaded of apprehended bias on their own part finding themselves reversed on appeal or compelled to exercise jurisdiction by a writ of mandamus.

34. Bearing reiteration in this context is that the systemic function served by providing curial mechanisms to ensure an absence of bias is the maintenance of public confidence in the judiciary. That function is better served by an allegation of bias on the part of a member of a multi-member court being, and being seen to be, considered and determined by the court as an institution, according to the same procedure and in the application of the same decision-making rule as would any other objection to jurisdiction.

35. The application that Bromwich J "recuse himself" ought therefore to have been considered and determined by the Full Court.

    Apprehended bias should have been found

36. The basis on which apprehended bias should have been found remains to be explained.

37. 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].

    [56](2000) 205 CLR 337 at 344 [6], footnote 41.

    [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].

38. 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.

    [61](2000) 205 CLR 337 at 345 [8].

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

39. 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.

    [63](2000) 205 CLR 337 at 348-351 [24]-[37].

40. 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.

    [64](2015) 255 CLR 135.

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

    [66](1910) 10 CLR 243.

    [67](1972) 128 CLR 509. See TheQueen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262-263.

41. In the present case, close adherence to the logic of the Ebner analysis has greater utility.

42. Although the appellant placed some emphasis on the fact of Bromwich J having held the statutory office of Director of Public Prosecutions at the time of the appellant's conviction appeal, and by inference at the time of his indictment, trial and conviction, the appellant failed to articulate how that factor alone might logically be said to lead to an apprehension that his Honour might not resolve the questions in the appeal to the Full Court on their legal and factual merits. None is apparent[68].

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

43. The appellant is on firmer ground in relying on the fact that Bromwich J had appeared as counsel against him in his conviction appeal. It will be recalled that becoming aware of that fact had prompted Bromwich J correctly to cause the parties to be notified of the potential for an apprehension of bias to have arisen.

44. In articulating the logical connection between that factor and an apprehension that Bromwich J might not bring an impartial mind to the resolution of the legal questions before the Full Court on their merits, the appellant relied on the observation of Gageler J in Isbester that "a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible 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"[69].

    [69](2015) 255 CLR 135 at 157 [63].

45. The pivotal stage in the analysis on this strand of the appellant's argument lies in the assessment of the reasonableness, in the circumstances of the case, of an apprehension of that kind from the perspective of a fair-minded lay observer. In undertaking that assessment, "it is the court's view of the public's view, not the court's own view, which is determinative"[70]. The hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court's analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system. The construct provides the "standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system"[71].

    [70]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.

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

46. Here, as the parties properly recognised in argument, much depends on the characteristics to be attributed to the hypothetical fair-minded lay observer in applying that standard. The observer is to be placed in a contemporary setting. Uncritical attitudes of the past cannot be assumed to be those of the present.

47. Being "fair-minded", the observer "is neither complacent nor unduly sensitive or suspicious"[72]. Yet the observer is cognisant of "human frailty"[73] and is all too aware of the reality that the judge is human. The observer understands that "information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making"[74].

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

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

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

48. Being "lay", the observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge"[75]. Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard "the irrelevant, the immaterial and the prejudicial"[76] and to discharge the judicial function uninfluenced by past professional relationships[77], "the public perception of the judiciary is not advanced by attributing to the ... observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case"[78]. This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.

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

    [76]    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].

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

    [78]    Vakauta v Kelly (1989) 167 CLR 568 at 585.

49. Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias[79]. The observer can be taken to appreciate that a party – especially an individual, and especially a non-citizen facing deportation on the basis of his conviction – might understandably experience a justifiable sense of disquiet in seeing his former prosecutor turn up as one of his judges.

    [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.

50. Though the lesson of Ebner is that each case must be considered by reference to the totality of its own circumstances, the combination of such considerations makes likely the conclusion that a fair-minded lay observer might reasonably apprehend that a judge who has been involved as an advocate in the prosecution of an individual in the past might have developed in that role, and might be unable completely to discard, a mind-set that is unfavourable to the individual to a degree incompatible with the dispassionate resolution of such question as the judge may be called on to decide in a subsequent case to which that individual is a party. The conclusion is even more likely where the earlier prosecution is in some way connected with the case before the court.

51. The Minister drew attention to two cases in which courts of criminal appeal in Australia have declined to set aside convictions in circumstances where the trial judge had acted as counsel for the prosecution in earlier proceedings against the accused for unrelated offences.

52. In one of those cases, R v Garrett[80], the judge when Solicitor‑General for South Australia had acted against the accused only as counsel for the respondent in an appeal against conviction and in an application for special leave to appeal. King CJ, with the concurrence of the other members of the Full Court of the Supreme Court of South Australia, opined that the transcript of the earlier appeal and application for special leave contained "nothing to suggest that the then Solicitor-General had formed any personal view of the case and was doing other than making submissions on behalf of the Crown in the ordinary way of advocacy"[81]. For present purposes, it is unnecessary and would be inappropriate to canvass the correctness of the outcome in that case at the time it was decided. It is enough to record that the fact that the judge had acted unexceptionally in performing the role of advocate would not now be accepted as sufficient to assuage a reasonable apprehension on the part of a lay observer that the judge might have carried over a perception of the accused formed during the performance of that role.

    [80](1988) 50 SASR 392.

    [81](1988) 50 SASR 392 at 400. See also at 404.

53. In the other case, McCreed v The Queen[82], the judge had acted as counsel for the prosecution in the trial of the accused for murder. In concluding that circumstance not to have given rise to an apprehension of bias, it was emphasised in the Full Court of the Supreme Court of Western Australia sitting as the Court of Criminal Appeal that the prosecution had been more than a decade earlier, that "nothing unusual or untoward" occurred in the course of it, that the judge had said that he had no independent recollection of it, and that the case against the accused before the judge was for unrelated sexual offences[83]. Again, without canvassing the correctness of the outcome at the time that case was decided, it would be difficult now to accept those factors as sufficient to assuage a reasonable apprehension on the part of a lay observer that the judge might have formed as a prosecutor and retained as a judge an adverse perception of the accused.

    [82](2003) 27 WAR 554.

    [83](2003) 27 WAR 554 at 561 [18].

54. The reasoning of Bromwich J in the present case understandably reflected the approach taken in those earlier cases. For the reasons stated, however, that approach cannot be accepted as a correct contemporary application of the criterion for the determination of apprehended bias in circumstances where a judge has acted as counsel against a party in or in relation to an earlier criminal prosecution.

55. His Honour's appearance as counsel against the appellant in his earlier conviction appeal was sufficient to give rise to a reasonable apprehension on the part of a fair-minded lay observer of the possibility that his Honour had formed and retained an attitude to the appellant incompatible with the degree of neutrality required dispassionately to resolve issues in a subsequent proceeding to which the appellant was a party. The circumstance that the conviction led to the cancellation of the appellant's visa so as to be causally related to the subject-matter of the appeal concerning the non-revocation of the cancellation decision reinforced the reasonableness of that apprehension in the circumstances of the case. The facts that his Honour had been concerned as counsel only to argue a question of law and had acquired no knowledge of the criminal history of the appellant not apparent from the record of the decision of the Victorian Court of Appeal were not to the point. Neither that nor any other of the considerations referred to by his Honour was sufficient to allay the apprehension of bias which reasonably arose.

    The effect of apprehended bias

56. 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.

57. 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.

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

58. 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].

    [85]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.

    [86]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.

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

    Orders

59. 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.

60. 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.

61. 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.

62. 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".

63. 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.

64. The question is whether the Full Court erred in hearing and determining the matter with Bromwich J as a member of the Court. The answer is "Yes", because his Honour's involvement in the appeal gave rise to a reasonable apprehension of bias and lack of judicial independence, due to the incompatibility between his earlier role as the Commonwealth Director of Public Prosecutions ("the Commonwealth Director") appearing personally in the conviction appeal, and his later role as a judge of the Full Court of the Federal Court hearing the appellant's migration appeal.

65. Where a judge sits as a member of a Full Court in circumstances that give rise to a reasonable apprehension of bias, the jurisdiction of the Court as constituted is vitiated. For that reason, the appeal should be allowed, the orders of the Full Court of the Federal Court should be set aside, and the matter should be remitted to the Full Court of the Federal Court before a differently constituted bench for rehearing and determination of the appeal according to law.

66. This appeal also raises the question of whether the Full Court erred by adopting a procedure for deciding the recusal application whereby Bromwich J alone determined the question of apprehended bias raised by the appellant. As will be explained, there is not, nor should there be, a single set of universally applicable procedures for dealing with recusal applications in multi-member courts. However, if an objection is raised or there are matters giving rise to a real potential for apprehended bias, and the judge in question decides not to recuse themselves (as occurred here), the Full Court as constituted must be satisfied it has jurisdiction before proceeding to hear the matter. In most, if not all, cases, the judge in question should have the opportunity initially to decide to recuse themselves, without that matter needing to be decided by the Full Court. If the judge decides not to recuse themselves and the objection is maintained, or the other judges consider that there are matters giving rise to a real potential for apprehended bias, a procedure that might be followed is set out below.

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

    Test for apprehended bias

67. 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].

    [88](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].

    [89]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].

    [90]Charisteas (2021) 273 CLR 289 at 296-297 [11], citing Ebner (2000) 205 CLR 337 at 345 [8], 350 [30], ConcretePty 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].

68. 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].

    [91]Ebner (2000) 205 CLR 337 at 344 [6].

69. 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].

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

    [93]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.

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

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

70. 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].

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

    [97]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].

71. 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].

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

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

    [100]Webb v The Queen (1994) 181 CLR 41 at 52.

    Knowledge of the fair-minded lay observer

72. 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].

    [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].

    [104]Webb (1994) 181 CLR 41 at 52.

73. 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.

    [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].

74. 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.

75. Next, as the Commonwealth Director, his Honour had personally appeared as senior counsel to oppose the conviction appeal, which was dismissed. Although the observer would understand that the appeal was about a legal point of general principle, they would see his Honour as the person who stood at the bar table in the Court of Appeal on 12 August 2014 and persuaded the Court to dismiss the appeal. They would observe that in that capacity his Honour had stepped in and successfully defended the appellant's conviction on behalf of the Commonwealth Executive.

76. Third, the criminal conviction led to the mandatory cancellation of the appellant's visa by a delegate of the Minister (also of the Commonwealth Executive) under s 501(3A) of the Migration Act on the basis that he failed the "character test" because he had been sentenced to a term of imprisonment exceeding 12 months, and was serving that sentence on a full-time basis in a custodial institution. The appellant applied for the cancellation to be revoked under s 501CA(4) of that Act, and then applied for merits review of the refusal to revoke the cancellation of the visa in the Tribunal. The fair-minded lay observer would know that the question for the Tribunal under s 501CA(4) was, because the appellant failed the character test, whether it was satisfied that there was "another reason" why the cancellation decision should be revoked.

77. Finally, the fair-minded lay observer would understand that the Federal Court, and on appeal the Full Court of the Federal Court, were not deciding the merits of the Tribunal's decision not to revoke the cancellation or considering the correctness of the appellant's criminal conviction. Rather, the Court's role was to determine whether the Tribunal, in deciding not to revoke the cancellation of the appellant's visa, had stayed within the legal limits of its power.

    Apprehension of bias

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

78. 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.

    [108](2000) 205 CLR 337 at 358 [60].

79. 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.

    [109](1994) 181 CLR 41 at 74.

80. 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

    [110](2015) 255 CLR 135 at 149 [34].

    [111]Isbester (2015) 255 CLR 135 at 152 [46].

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

81. 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.

82. 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.

    [113](2015) 255 CLR 135 at 157 [63].

83. 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.

    [114](1988) 50 SASR 392.

    [115](2003) 27 WAR 554.

    [116](2008) 192 A Crim R 105.

84. 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.

85. Ultimately, in cases raising a question of apprehended bias, what must be involved is "an assessment (through the construct of the fair‑minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power"[117]. The fair‑minded observer will be sensitive to how the circumstances might reasonably appear to the actual party who is asserting the apprehension of bias, in this case the appellant[118]. Here, the performance by his Honour of the two incompatible roles in the exercise of public power in relation to the appellant gave rise to the appearance of unfairness, impartiality and a lack of independence being present in the exercise of power to dismiss the migration appeal. The appeal should be allowed.

    [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].

    Procedure for deciding recusal application

86. 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.

87. 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].

    [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].

88. 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].

    [120]Barton v Walker [1979] 2 NSWLR 740 at 749.

    [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.

89. 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].

    [122](2000) 205 CLR 337 at 361 [74].

    [123]Ebner (2000) 205 CLR 337 at 361 [74].

90. 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].

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

91. The Australian Law Reform Commission report "Without Fear or Favour: Judicial Impartiality and the Law on Bias" (the "ALRC Bias Report") recommended in December 2021 that objections on bias grounds to one or more judges sitting on a multi-member court be determined by the court as constituted, observing that[125]:

    "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?

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

    [126]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.]

    [127]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.

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

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

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

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

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

    [133]See ALRC Bias Report at 575-585 (Appendix G – Recusal Guidelines of New Zealand Courts).

92. 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].

    [134]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].

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

    [136]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.

    [137]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].

299. In this case, the specific "twofold position"[411] of Bromwich J involves the "real and not remote"[412] possibility of a reasonable apprehension of bias on the part of the fair‑minded lay observer. The nature and quality of the connection between the two positions, one involving the cancellation of the appellant's visa consequential on the upholding of the conviction sought by Bromwich J in the previous role, and the other involving Bromwich J in deciding the legality of a decision not to revoke that cancellation, gives rise to a reasonable apprehension of bias.

     [411]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.

     [412]Ebner (2000) 205 CLR 337 at 345 [7].

300. Earlier decisions on which the Minister relied, McCreed v The Queen[413] and R v Garrett[414], correctly recognised that questions of apprehended bias depend on the circumstances[415]. But it is now apparent that McCreed v The Queen involved unjustified weight being given to the passage of time between the judge acting as prosecutor and the judge discharging his judicial duty in circumstances where the offences, although unrelated, were both serious and involved violence[416]. And R v Garrett involved applying the kind of practical considerations which a judge may rightly consider in deciding not to sit to the reasonableness of the apprehension of the fair‑minded lay observer of a possible lack of impartiality[417]. A judge's decision not to sit may rightly be described as a "practical" one[418]. A judge's decision that the judge is not precluded from sitting by reason of apprehended bias, however, involves the application of an objective standard and is a conclusion of law[419].

     [413](2003) 27 WAR 554.

     [414](1988) 50 SASR 392.

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

     [416](2003) 27 WAR 554 at 568 [45].

     [417](1988) 50 SASR 392 at 400-401.

     [418]R v Garrett (1988) 50 SASR 392 at 400.

     [419]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].

301. For the reasons given, the hearing before the Full Court miscarried on the basis that one of the members of the bench was subject to a reasonable apprehension of bias.

302. While this is sufficient to dispose of the appeal, another issue has been the subject of argument – in a multi‑member bench, who decides?

     The multi‑member bench – who decides?

303. 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".

304. 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.

305. 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].

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

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

306. 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.

     [422]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.

     [423]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].

     [424]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.

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

307. 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.

     [426](2000) 205 CLR 337 at 397-398 [185].

     [427](2000) 205 CLR 337 at 361 [74].

308. 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.

     [428][1998] HCATrans 43 (18 February 1998) at lines 28-30; Kartinyeri v The Commonwealth [No 2] (1998) 72 ALJR 1334; 156 ALR 300.

     [429][2013] HCATrans 263 (5 November 2013) at lines 53-77.

309. The apparent answer to this question is that the composition of a court by an independent and impartial judge or judges goes to the jurisdiction of the court, which that court (however constituted) must decide for itself[430]. Accordingly, it is contended that if the court is constituted by a single judge, that judge must decide any issue of bias. If the court is constituted by a multi‑member bench, all judges constituting the court must decide any issue of bias. In the event of disagreement in the latter case, it is said that the majority decision prevails.

     [430]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)).

310. I disagree.

311. Whatever its origins, the conventional judicial practice does not deny that a court's jurisdiction depends on the court being constituted by an independent and impartial judge or judges. The conventional judicial practice is only that, in Australia, this issue of bias, and its jurisdictional consequences, has been (and, in my view, should continue to be) recognised to be of a unique kind, with the consequence that the judge the subject of the alleged issue of bias is to decide the issue. This unique quality, and the broader and deeper implications it has for courts and judges, reinforces the two aspects of the convention which are fundamental. First, any issue of bias (apprehended or actual) is to be determined by the judge said to be subject to disqualification. Second, and equally importantly, no other judge exercising co‑ordinate jurisdiction (that is, jurisdiction in respect of the relevant matter at the same level in the judicial hierarchy) can gainsay that judge's decision. The jurisdiction of the court as constituted rises or falls on the decision of that judge.

312. The pithy statement of Jackson J (with which Frankfurter J concurred) in the Supreme Court of the United States that there is "no authority known to me under which a majority of this Court has power under any circumstances to exclude one of its duly commissioned Justices from sitting or voting in any case"[431] both is accurate and involves a deep wisdom about common law courts as human institutions and judges as human beings. The fact is this – there is no authority in Australia that the judge the subject of the alleged disqualification may not properly decide the issue and there is no authority that one or more judges exercising co‑ordinate jurisdiction with another judge may prevent that judge from hearing a case. Mere disagreement with the conclusion reached by that other judge said to be subject to disqualification for bias, even if by a majority of the judges constituting the multi‑member bench, is an unsound basis for any such purported exercise of judicial power against that other judge.

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

313. This context is important. We are not dealing with an issue of the statutory power of a Chief Justice or another judge (with authority to do so) to manage and make arrangements for the conduct of the business of a court. No doubt all courts have internal administrative and other arrangements to ensure, so far as possible, that disputes about one or other judge being subject to an apprehension of bias are avoided. All this is proper. But sometimes the resolution of the issue in open court by an exercise of judicial power cannot or should not be avoided. We are concerned only with such an exercise of judicial power.

314. In this context, an exercise of judicial power, the judge the subject of the issue of bias (apprehended or actual) should always decide the issue whether the judge is to sit, whether sitting as a single judge or as part of a multi‑member bench. No other judge exercising any form of co‑ordinate jurisdiction may decide that issue. Nor, on a multi‑member bench, may any judge prevent any other judge from sitting by an exercise of judicial power. This is dictated by well‑established convention. It also results from the lack of any apparent source of judicial power by judges exercising co‑ordinate jurisdiction to make any such order against the other judge.

315. This is not to suggest that there is no remedy for a party where a judge has refused to disqualify themselves for apprehended or actual bias. A judge who has refused to disqualify themselves should make an order, if necessary, to enable any appeal or other proceeding challenging that decision to be instituted. An appeal from such an order to a court exercising appellate jurisdiction, even if the order is treated as interlocutory, or the seeking of a writ of prohibition from a supervisory court, may be preferable to proceeding with the substantive hearing before that judge[432]. But the proper judicial remedy is not (or should not be) in the hands of the judge's judicial colleagues exercising co‑ordinate jurisdiction.

     [432]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.

316. The consequence is that the approach taken by the Full Court in the present case, where Bromwich J decided he was not disqualified from sitting, which McKerracher and Griffiths JJ did not question, was correct. If Bromwich J had been required to make that decision at an earlier time, it might have been possible for the appellant to appeal (or seek leave to appeal) or to seek a writ of prohibition. But these possibilities do not mean such a course would have been preferable in this case. This matter involved a short hearing where judgment was able to be delivered in a matter of weeks. The objection having been taken, the appellant's capacity to seek special leave to appeal was preserved. The fact that the Full Court's order will be set aside in this case does not imply that the current system did other than work precisely as it should.

317. I now identify the reasons the existing convention remains sound.

318. First, while the tests for apprehended and actual bias are different, they are sourced from the same stream and therefore should be dealt with in the same manner by courts.

319. Second, in deciding any question of apprehended bias, the judge the subject of the issue is best placed to fulfil a number of inter‑connected functions, including: (a) complying with the duty of disclosure to the parties, a duty which that judge alone can discharge; (b) applying the test for apprehended bias with all knowledge then available; (c) weighing the outcome of the test for apprehended bias with the judge's other duties, including the duty to sit, not to sit, and to maintain public confidence in the administration of justice; and (d) ensuring their capacity to sit in accordance with their judicial oath or affirmation. Moreover, these duties are not to be assessed in isolation from each other. Each informs the others.

320. This second consideration recognises two further relevant factors. One is that issues of apprehended bias, while involving a question of law to be resolved on an objective basis, also involve evaluative processes about which reasonable minds may differ. The other is that the duty to sit is not absolute and, in my view, does not become absolute merely because a court has been formally constituted or has commenced to hear a matter. Further, and as will be explained, I do not see any difficulty for public confidence in the administration of justice arising from the events in Kartinyeri or Unions NSW in this Court. To the contrary, from the perspective of public confidence in the administration of justice, the system operated as it ought to do in both cases.

321. Third, the existing convention does not create any difficulty with disclosure of the relevant circumstances as known by the judge the subject of the issue. The relevant judge alone is subject to the duty of disclosure and, under the existing convention, may make the disclosure as that judge sees fit. The disclosure is not evidence and is not required to be taken at face value. It does not expose the judge to cross‑examination[433]. The parties are free to make submissions about the relevance and materiality of that disclosed information to the fair‑minded lay observer. By contrast, all suggested alternatives to the conventional practice would appear to place judges exercising co‑ordinate jurisdiction with that judge in the potentially invidious position of having to obtain information from and second‑guess the views of their judicial colleague.

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

322. Fourth, it is one thing for judges comprising a multi‑member bench to disagree about some issue of fact or law as between the parties to a proceeding and for the majority decision to dictate the outcome of the dispute between the parties. It is another for judges comprising a multi‑member bench to disagree with a decision by their fellow judge and, by majority, exercise judicial power against that judge by requiring the judge either to disqualify themselves from hearing or to hear the matter. I am not convinced that the source of power is found in the duty of a court to satisfy itself that it has jurisdiction. If the judge the subject of the issue rightly disqualifies themselves, no question of jurisdiction arises. If the judge the subject of the issue wrongly fails to disqualify themselves, the court will not have jurisdiction. This applies to both a single judge bench and a multi‑member bench. Any error may be corrected either on appeal (before or after the substantive decision) or by writ of prohibition from the relevant supervisory court. By this means, the judicial hierarchy, fundamental to the Australian legal system, is maintained and observed. And by this means, the exercise of judicial power by judges against another judge exercising co-ordinate jurisdiction, and all the potential difficulties it entails (legal and practical), are avoided.

323. Fifth, the reasons advanced for a change to the judicial convention in Australia are not convincing. The principle that no‑one may be a judge in their own cause is inapt in this context. Judges have, or should have, no particular interest in deciding any matter. As was said in Ebner, if "a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise"[434]. It is generally (and rightly) accepted that actual bias involves the conscience or state of mind of the individual judge and no‑one else. It is not mere expediency for the judge in question also to decide any issue of apprehended bias. The issue of apprehended bias is one of law which, while evaluative, no more involves the interests of the judge than any other question of law. And if questions of disabling embarrassment or any sense of grievance, disappointment, or disturbance on the part of the judge arise, the relevant territory is actual, not apprehended, bias. This said, it would be wrong to assume that judges approach judicial work or issues of apprehended bias as if they were personal in any way.

     [434](2000) 205 CLR 337 at 348 [21].

324. Sixth, all suggested alternatives involve their own difficulties, without a sufficiently compelling reason for the introduction of a new judicial practice. The problems are not confined to the maintenance of judicial collegiality. They potentially go to the heart of the judicial hierarchy, which is fundamental to our legal system, to the individual judicial conscience, and to the continued integrity of the judicial system. The issues which arise on the conventional practice, by contrast, are known and have proven to be manageable.

325. Seventh, judicial practice should not be driven by unfounded fears of judicial conduct at or beyond the margins. By this I mean that a mere possibility of an exceedingly rare case in which the decision of the judge the subject of the bias issue might consequentially call into play the judicial conscience of the other judges on the multi‑member bench is not a sufficient reason to introduce a new judicial practice.

326. Eighth, while respect for expertise may have diminished in contemporary society, judges are professionals, by education, training, experience, and tradition, and are bound by their judicial oath or affirmation. It is neither necessary nor appropriate that judges of co‑ordinate jurisdiction be called upon to judge their judicial colleagues in the discharge of their individual judicial function of ensuring they are not subject to apprehended or actual bias.

327. The interplay between these considerations is considered in greater detail below.

328. Disqualification for reasonable apprehension of bias arises from the risk of the perception of a possible lack of impartiality or independence in the judge deciding the issue which must be decided. It does not arise from a fear (however well‑founded) that a judge might decide a case adversely to one or other party[435]. Allegations of bias are ordinarily determined at the level of apprehended bias as an objective question of law. Where the issue of apprehended bias is genuinely arguable, its resolution, as discussed, almost always involves questions of degree which the judge with personal knowledge of the circumstances (fallible as the judge's recollection might be) is best placed to weigh.

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

329. Further, the circumstances in which an arguable case of reasonable apprehension of bias might arise are as wide and diverse as human experience. The law weaves together multiple strands into an overall fabric richer and more nuanced than any one doctrine considered in isolation. Disqualification for apprehended bias is also not applied by any judge in a vacuum. There may be a complex interaction of factors involved.

330. For example, if the issue emerges at an early stage and is apparently arguable, court management practices generally operate, quite properly, to avoid wasting resources of parties on a satellite issue by the expedient of allocation of the case to a judge not subject to the issue. Courts, including this Court, have also routinely endorsed the prudent approach of judicial self‑exclusion at an early stage, if possible[436], because litigation of satellite issues at the expense of parties may involve nothing but unnecessary delay and cost. Equally importantly, however, parties do not get to choose their judge, either directly, or indirectly by specious or trivial allegations of bias. As noted, judges have a duty to sit[437]. And they have a duty of fidelity to the law and to their judicial oath or affirmation. To add to the potential complexity, judges and parties do not always know about an alleged bias issue in sufficient time to avoid formal judicial determination of the issue. Or there may be important considerations of principle or fairness to the parties and other litigants in having the question of bias resolved only after a hearing and by formal judicial determination. The potential factors in play are infinite. They may be transformed on constitution of the court or commencement of the hearing, but do not necessarily all cease at that moment.

     [436]Ebner (2000) 205 CLR 337 at 348 [20].

     [437]Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.

331. While appellate and multi‑member benches operate by majority decision[438], apprehended bias, as noted, involves "questions of degree" about which reasonable minds may differ[439]. And, if it comes to it, only the judge the subject of the alleged bias issue can truly know if they can decide the case according to their judicial oath. This is why such applications are made to the judge against whom the bias issue is alleged. It is also why that judge alone decides the issue. If that judge errs, correction by appeal or by writ is available, either immediately, if practicable, or ultimately[440]. Nothing in this undermines the fact that it is the "first duty" of a court, as constituted, to ensure that it has jurisdiction[441]. The convention concerns only how this duty is discharged.

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

     [439]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.

     [440]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.

     [441]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.

332. Even if, in a court such as the Federal Court, an expansive view is taken of the provision governing majority opinions[442], so that a decision about bias of a member of the Full Court is "for the purposes of any proceeding ... [a] judgment to be pronounced", this does not mean that if a decision and any consequential order is made by the judge the subject of the allegation of bias alone then there is error.

     [442]s 16 of the Federal Court of Australia Act 1976 (Cth).

333. Whether they say they agree or not[443], the convention that judges exercising co‑ordinate jurisdiction are not able to impose their views on the judge the subject of a bias issue, by any exercise of judicial power or otherwise, is sound. This means that, in a multi‑member bench, the judges not the subject of the issue of bias must accept the decision of the relevant judge. There is no capacity for those judges to purport to exercise judicial power against their fellow judge. Those judges must discharge their own duty to sit unless they are subject to actual or apprehended bias for some reason. But mere disagreement, even strong disagreement, with the decision of a judge about a bias issue said to disqualify that judge from sitting does not engage the judicial oath or affirmation of the other judges constituting the multi‑member bench.

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

334. The wisdom of this course is that it focuses the decision on the one person who can be taken to know the most about the relevant issue and whose own conscience or state of mind might be involved. It casts the relevant duty to decide on the person the subject of the alleged bias, who generally has a duty to sit if no such bias (apprehended or actual) arises, and who must not sit if they cannot do so in accordance with their judicial oath or affirmation. This course also prevents potentially unseemly and corrosive division between judges exercising co‑ordinate jurisdiction. In a human system, involving "human frailty"[444], the existing convention protects the overall integrity of the judicial system better than the suggested alternatives.

     [444]Ebner (2000) 205 CLR 337 at 345 [8].

335. The existing judicial practice is none the worse for being a convention. Nor does the fact that the convention is not immune from rightful scrutiny mean that the practice is wrong or should be changed.

336. The circumstances in Unions NSW disclose one potential difficulty that may arise in a case where the conventional practice is abandoned. In that case, the basis of the suggestion of apprehended bias was legal advice Gageler J had given to the Commonwealth in his previous capacity as Solicitor‑General of the Commonwealth. Legal professional privilege in the fact that the advice had been given was waived by the act of counsel for the Attorney‑General of the Commonwealth disclosing that fact. But privilege continued in the content of that advice. Only Gageler J and the Commonwealth knew the substance of the advice. Neither was free to disclose the substance to the other members of the Court. The objective reasonableness of the apprehension of bias followed from this lack of information, leading to Gageler J disqualifying himself from the hearing. That is no more than the system working as it should. But even if the content of the legal advice had been disclosed, Gageler J alone could have assessed whether he was able to hear the case in accordance with his judicial oath or affirmation to do so without "affection". The concept of "affection" can undoubtedly extend to a judge's possible "affection" for previous advice given to the person who is now a litigant before them on the same or a similar issue. And in that event even if the other judges, or a majority of them, had concluded that the advice said to give rise to the issue did not in fact involve a reasonable apprehension of bias, the judge the subject of the allegation alone can and must decide if the case is one in which the duty to sit must yield to the duty of fidelity to the judicial oath or affirmation.

337. The circumstances of Kartinyeri disclose another potentially difficult issue which would arise if a person other than the judge the subject of the allegation of bias were to decide the issue. In Kartinyeri the issue of alleged apprehended bias involved Callinan J. Callinan J provided a detailed description of the circumstances as he recalled them relevant to his initial decision not to disqualify himself from the hearing[445]. But judicial recollection is no more infallible than that of any other person. Following the substantive hearing in Kartinyeri, in which Callinan J did sit, a party made a further application to the Court as a whole for his Honour's disqualification. Callinan J then decided to disqualify himself from all further involvement in the matter. Again, Callinan J alone could know whether the duty to sit had to yield to the duty of fidelity to the judicial oath or affirmation. And his Honour was best placed to re‑assess the issue of apprehended bias by reference to all information available at the time of the further application. It appears that, having done so, his Honour adopted the prudent course of self‑disqualification. Again, this exposes the proper working of the system.

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

338. The point also remains that in both cases where this Court had to confront the issue, it adopted the conventional practice.

339. Further, the question when a court is constituted and seized of the hearing of a matter, be it by a single judge or a multi‑member bench of judges, may also depend on its enabling statute or involve a contestable fact. It follows that, in the case of a multi‑member bench, identifying the point at which it is said that the court as a whole must hear and decide any issue of bias might not be straightforward. By contrast, the conventional approach provides a court as an institution and an individual judge with the greatest degree of flexibility to decide what course is in the best interests of the administration of justice in any given case. As noted, if there is no issue of principle involved and another judge can hear a case without delay or disruption being caused, the prudent approach of self‑disqualification by the relevant judge may be in the best interests of the administration of justice, particularly if the apprehended bias issue is reasonably arguable. But where there is an issue of principle, or it is important that the court not act in any way which might be misconstrued as meeting the demands of a particular party, or where disqualification may result in disruption to a scheduled hearing, it may be in the best interests of the administration of justice for the arguments to be made in open court and reasons for the decision to be given. The current convention enables the response of the court as an institution and the judge as an individual discharging judicial office to be best adapted to the circumstances of any case.

340. The current convention of an issue of bias being raised with and, if necessary, formally determined by the relevant individual judge also reflects the twin faces of the requirement for judicial independence and impartiality – that justice be done and be seen to be done. The law accepts that a reasonable apprehension of bias has the same corrosive potential on the maintenance of the rule of law as actual bias. Further, the effect of the two forms of bias is the same: it vitiates any decision made. The conventional practice enables the judge best placed to know the relevant information to disclose it to the parties with the least formality and potential embarrassment to all involved, including, possibly, third parties. It also enables the judge, with the benefit of having heard the parties, to examine their own conscience to ensure that the duty to sit and adherence to the judicial oath or affirmation are not in tension (in which event, if the tension cannot be resolved, the latter must prevail). A mere change in preference as to judicial practice is not a sufficient basis for the articulation of any new principle of general application.

341. The conventional practice also conforms to the current guidelines published by the Council of Chief Justices of Australia and New Zealand that "in the end the decision to sit or not to sit must rest comfortably with the judicial conscience"[446]. The conception of the judicial conscience in question being that of the judge the subject of the possible or alleged bias remains sound.

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

342. It should not be taken from these conclusions that all judicial conventions and practices are "frozen in time"[447]. They are not. But nor should they be lightly abandoned.

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