FEDERAL COURT OF AUSTRALIA

NTD8 v Australian Crime Commission (No 1b) [2008] FCA 984

PRACTICE AND PROCEDURE - Bias – circumstances where a judge should disqualify himself or herself for bias – consideration of ‘reasonable apprehension of bias’

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Crime Commission Act 2002 (Cth)

Australian Crime Commission Amendment Act 2007 (Cth)

Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory Emergency Response and Other Measures) Act 2007 (Cth)

National Crime Authority Act 1984 (Cth)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Planning Act (NT) (No. 55 of 1999)

Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 242 ALR 191

Barnes v Boulton [2004] FCA 1219

Livesey v New South Wales Bar Association (1983) 151 CLR 288

Johnson v Johnson (2000) 201 CLR 488

Ebner v Official Trustee (2000) 205 CLR 337

Vakauta v Kelly (1989) 167 CLR 568

Smits v Roach (2006) 227 CLR 423

Webb v The Queen (1993) 181 CLR 41

R v Bow Street Magistrate; Ex parte Pinochet Ugarte (No 2)[2000] 1 AC 119

Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421

The Queen v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546

R v Lusink; Ex parte Shaw (1980) 32 ALR 47

Re JRL; ex parte CJL (1986) 161 CLR 342

Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka (2001) 206 CLR 128

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577

Galea v Galea (1990) 19 NSWLR 263

Bowesco Pty Ltd v Zohar [2007] FCAFC 1; (2007) 156 FCR 129

Australian Securities and Investments Commission v Reid [2005] FCA 1274

Attorney-General (NT) v Maurice (1987) 17 FCR 422

Locobail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451

City of Canada Bay Council v Bonaccorso Pty Ltd (No.2) [2007] NSWCA 368

The Queen v Watson; ex parte Armstrong (1976) 136 CLR 248

R v London County Council; Ex parte Empire Theatre (1894) 71 LT 638

NTD8 v AUSTRALIAN CRIME COMMISSION

NTD8 of 2008

REEVES J

14 JULY 2008

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD8 of 2008

BETWEEN:

NTD8

Applicant

AND:

AUSTRALIAN CRIME COMMISSION

Respondent

JUDGE:	REEVES J
DATE OF ORDER:	14 JULY 2008
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1. The Notice of Motion filed 24 June 2008 be dismissed.

2. Costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD8 of 2008

BETWEEN:

NTD8

Applicant

AND:

AUSTRALIAN CRIME COMMISSION

Respondent

JUDGE:	REEVES J
DATE:	14 JULY 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

1 This is an application by the applicant, NTD8, for me to disqualify myself from further involvement in these proceedings and, in particular, the hearing set down for 30 June and 1 July 2008.

2 The application is based upon an allegation that there is a reasonable apprehension of bias on my part. Specifically, the applicant says that by reason of certain public comments I made in late August and early September 2007, in my role as a member of the Taskforce (‘the Taskforce’) established to oversight the Prime Minister’s Northern Territory Emergency Response, more commonly known as the Northern Territory Intervention (which is how I will refer to it in these reasons), a fair minded lay observer might reasonably apprehend that I will not bring an impartial mind to the resolution of the issues that arise in these proceedings.

3 The Notice of Motion was filed on 24 June 2008 and brought on for hearing later that day as a matter of urgency. It was supported by an Affidavit of Mr B. I. Medina (a solicitor), which annexes three documents containing the public comments I made. I was subsequently informed by counsel for the applicant that these documents had been obtained from the website of the Bennelong Society. Because the hearing of the substantive application was imminent, I made orders on 26 June 2008 dismissing this application on the understanding that I would publish detailed written reasons for my decision at a later date. These are my reasons.

FACTUAL BACKGROUND

4 Before I set out the details of those parts of my public comments relied upon by the applicant, I shall briefly set out some of the relevant factual background to those comments and to these proceedings generally.

5 In June 2007, following the publication of the ‘Little Children are Sacred’ Report which was commissioned by the Northern Territory Government, the Commonwealth Government decided to establish the Northern Territory Intervention to deal with the incidence of child abuse and domestic violence in remote Aboriginal communities in the Northern Territory. As part of the Northern Territory Intervention, an eight-member Taskforce was formed which included the Chief Executive Officer of the Department of Prime Minister and Cabinet, and the Chief Executive Officer of the Northern Territory’s Chief Minister’s Department. In late June 2007, I was appointed a member of the Taskforce. There was no representative of the Australian Crime Commission (‘the Commission’) on the Taskforce and, as far as I was (and am) aware, the work of the Taskforce was separate from, and independent of, the work of the Commission. The role of the Taskforce included providing expert advice to the Commonwealth Government, through the Prime Minister and the Minister for Families, Community Services and Indigenous Affairs, on the implementation of the Northern Territory Intervention, and promoting public understanding of the issues involved in the Northern Territory Intervention. In pursuit of this latter aspect, most of the members of the Taskforce made public comments in the media and elsewhere about the Northern Territory Intervention. It was in that capacity that I made the public comments that the applicant has relied upon in this application.

6 I was appointed as a judge of this Court by Letters Patent signed by the Governor-General on 26 September 2007. My appointment was expressed to take effect from 19 November 2007. Soon after my appointment, I resigned my position as a member of the Taskforce. It is hardly necessary to record the fact that since my appointment I have not expressed any views publicly, for or against, the Northern Territory Intervention.

7 The applicant is an Aboriginal community controlled health organisation providing health services to Aboriginal communities, outstations and pastoral properties in the Katherine region of the Northern Territory. On the morning of 7 May 2008, the applicant filed an application in this Court seeking an order pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977(Cth) to review a decision of an officer of the Commission, (the respondent in these proceedings), to issue a notice pursuant to s 29 of the Australian Crime Commission Act 2002 (Cth)(‘the ACC Act’). The notice required the applicantto attend before an officer of the Commission and produce certain records and documents held by it. In summary, the records and documents sought related to presentation by patients of the applicant at clinics conducted by it, for the treatment of injuries that had been sustained, or that possibly could have been sustained, as a result of family and domestic violence and/or other forms of assault, including sexual assault.

8 Because the notice in question required the applicant to produce the records and documents to the Commission’s officer by midday on 7 May 2008, the applicant sought an urgent ex parte injunction before me to suspend the operation of the notice until its application for review of the decision to issue the notice, could be determined. Shortly before midday on 7 May 2008, I granted the ex parte injunction and adjourned the application for further hearing at 2.15 that afternoon. At the resumption of the hearing, Mr Docherty of the Australian Government Solicitor’s Office appeared for the respondent and sought an adjournment until 9 May 2008, on the basis that the ex parte injunction order would be extended until that time.

9 Since that time, this proceeding has been mentioned before me on a number of occasions and I have given various directions with a view to having the substantive application determined as quickly as possible. During that process, at least three significant things occurred. First, by agreement between the parties, the respondent withdrew the first notice and issued an amended notice with a more limited scope, but still under s 29 of the ACC Act. The applicant’s application was then amended to seek to review the decision to issue this second notice (‘the Notice’), albeit raising the same, or similar, issues. Secondly, some weeks after this proceeding was issued, another proceeding (being NTD9 of 2008) was commenced by an Aboriginal health organisation located in Central Australia, seeking similar relief and raising similar issues to those raised in this matter. Once this was realised, both applications were listed before me together and dealt with together, until recently.

10 Thirdly, both applicants sought discovery of various documents held by the Commission relating to the decisions to issue the s 29 notices. In response to those requests, the Commission claimed public interest immunity in relation to the production of some of those documents. Because I was to hear the substantive applications, the parties agreed it was appropriate to have the public interest immunity issues heard by another judge, noting the recent comment of the High Court that this was the appropriate course: see Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 242 ALR 191 at [24]. That matter was subsequently listed before Justice Mansfield on 13 June 2008 and his Honour has now published his rulings on the public interest immunity issues.

11 In the meantime, the substantive applications had been tentatively set down for hearing before me on 30 June and 1 July 2008, subject to the public interest immunity issues being resolved on or about 13 June 2008. Both proceedings were mentioned before me on 20 June 2008, by which time the public interest immunity issues had been resolved. Because of difficulties with the availability of counsel and because it appeared that there may be some differences in the factual material relied upon in each proceeding, the tentative hearing dates of 30 June and 1 July 2008 were confirmed for this proceeding. Proceeding NTD9 of 2008 was set down for hearing before me at the later dates of 14 and 15 July 2008.

THE PUBLIC COMMENTS RELIED UPON

12 The public comments the applicant relied upon were made on three separate occasions in late August and early September 2007. I will set out below the parts of those public comments relied upon by the applicant.

13 On 31 August 2007, at a dinner held at the Victoria Hotel, Melbourne, during the course of a presentation to Mr Louis Nowra, the author of a book entitled ‘Bad Dreaming’ (‘the Nowra comments’), I said, among other things:

‘As those of you [who] have tried it will know, speaking out on these issues is not without its reputational risks … anyone who dares to say something that might not fit with the orthodoxy proclaimed by the self appointed Aboriginal leadership or the elites of the eastern seaboard of Australia is usually subjected to the basest form of personal attacks.

At the same time there is usually no attempt to debate the issues raised.

Speaking out in this area takes quite some courage.

For example: some members of the so-called Aboriginal leadership have attacked Noel Pearson for speaking out … they have not debated the issues he has raised, but attacked him personally.

Similarly, Sue Gordon and Warren Mundine.

But Louis Nowra is in a different category altogether … for starters he is not an Aboriginal person.

I first heard of his book “Bad Dreaming” when I saw him being interviewed on the ABC’s Lateline program earlier this year.

At the time I said to my wife: ‘This fellow is very brave, if they attack Noel Pearson like they have, just imagine what they will do to him’.’

14 Later in that same presentation I said:

‘You needed to realise that when someone like Nanette Rogers from “the deep north” had the courage to break ranks and speak out about the mindless and endless violence on Aboriginal communities, that she was genuine, that she should be listened to and not treated as just another “racist red neck”, or as someone who is merely trying to demean Aboriginal culture.

You needed to be embarrassed away from turning a blind eye to all this … just like we, in the “deep north” did.

So congratulations Louis Nowra on having the courage to write “Bad Dreaming”.

On having the courage to withstand the inevitable attacks from the usual suspects that you are racist, or ignorant, or similar … and I know there have been those attacks.’

15 On the next day, at the same venue, in my capacity as a member of the Taskforce, I presented a paper entitled ‘A Personal Report from the Field’ to a conference organised by the Bennelong Society. In that paper I said, among many other things, referring to the Families Community Services and Indigenous Affairs and other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007,that:

‘This includes reforms to the permit system and the imposition of bans on pornography on these Aboriginal communities. It also contains a number of other provisions including those providing additional powers to the Australian Crime Commission.

Again, this is, of necessity, a much potted summary of the legislation – it is bold, it is complex and it is detailed … very detailed.’

16 This comment (above), which is the only mention I made of the Commission, appeared at the end of a section of my paper in which I set out a summary of the contents of the five pieces of legislation that were passed by the Commonwealth Parliament to give effect to the Northern Territory Intervention. I had earlier observed that this package of legislation covered about thirty subject areas and extended to more than 500 pages.

17 On the following Monday, 3 September 2007, I was interviewed for an ABC Radio National program called ‘Counterpoint’ in relation to the paper I had presented at the Bennelong Conference (above) (‘the Counterpoint comments’). In that interview I am recorded as stating, during a long answer in which I described what had occurred in the Northern Territory Intervention to that time, that: ‘As well, sensible legislation has been put in place’. Then, later in that interview, I was asked the following question by the interviewer, Mr Paul Comrie-Thomson:

‘Louis Nowra, in accepting the Bennelong Award, said it will take 30 years to get it right. And the Reverend Doctor Steve Etherington said it will be 15 to 20 years before a work-ready generation is even possible. That means, of course, decades of bipartisan and community support. Are you confident?’

My response was as follows:

‘Well I’m apprehensive at present. Perhaps this is because we are in the midst of an election campaign or at least the lead up to it. The Northern Territory Government have said that they fully support the intervention with the exception of the permits and five year leases aspects, but [M]inisters of that [G]overnment seem to be (unfortunately, and it’s very disappointing) using opportunities to attack the intervention over the past few weeks. I’d hoped that this whole intervention could be quarantined from that, from the politics of the election campaign. … So, going back to what’s happening on the edges, I just hope that the people that are attacking this, obviously connected with the election campaign, would just desist and therefore assist [us] to get on with it. If we get over that and we move to the next stage in the political process, whilst I’m apprehensive about those attacks, I’m mildly confident that we can move to a bipartisan position whoever wins the election.’

18 The above are the only parts of the three documents that the applicant has relied on. The three documents are more extensive than this and cover a wide range of issues associated with the Northern Territory Intervention.

THE RELEVANT STATUTORY PROVISIONS

19 The Commission was re-established by s 7 of the ACC Act. Prior to the ACC Act coming into effect in 2002, the Commission was known as the National Crime Authority (established under the National Crime Authority Act 1984 (Cth)). The Commission’s functions are described in s 7A of the ACC Act, amongst other things, they include: collecting, correlating, analysing and disseminating criminal information and intelligence, and undertaking intelligence operations (when authorised by the Board of the Commission).

20 The expression “intelligence operation” is defined in s 4 of the ACC Act to mean: “the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity.” The expression “federally relevant criminal activity” is defined in s 4 to mean: “a relevant criminal activity, where the relevant crime is an offence against a law of the Commonwealth or of a Territory; or a relevant criminal activity, where the relevant crime is an offence against a law of a State; and has a federal aspect”.

21 The Board of the Commission is also authorised to determine that an intelligence operation or an investigation is a ‘special operation’ or ‘investigation’ (see s 7C(2) and (3)). Much of the critical work of the Commission is carried out by examiners. Examiners are appointed by the Governor-General (see s 46B) and are given the powers, amongst other things, to conduct examinations for the purposes of a special ACC operation/investigation (see s 24A), to summons witnesses and take evidence (see s 28) and to obtain documents for that purpose (see s 29).

22 A more detailed description of the provisions of the ACC Act is contained in Justice Finn’s decision of Barnes v Boulton [2004] FCA 1219 at [5] to [13] which, subject to recent amendments (see below), remains generally current and relevant.

23 The Notice that is at the heart of these proceedings was issued pursuant to s 29 of the ACC Act. The relevant parts of s 29 provide as follows:

‘(1) An examiner may, by notice in writing served on a person, require the person:

(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being an examiner or a member of the staff of the ACC; and

(b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation.

(1A) Before issuing a notice under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the notice. The record is to be made:

(a) before the issue of the notice; or

(b) at the same time as the issue of the notice; or

(2) A notice may be issued under this section in relation to a special ACC operation/investigation, whether or not an examination before an examiner is being held for the purposes of the operation or investigation.

(3) A person shall not refuse or fail to comply with a notice served on him or her under this section.

(3A) A person who contravenes subsection (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.

24 It is also necessary to set out a summary of the amendments made to the ACC Act by the package of legislation that supported the Northern Territory Intervention. Those amendments were enacted via by two pieces of legislation: the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory Emergency Response and Other Measures) Act 2007 (Act number 128 of 2007) and the Australian Crime Commission Amendment Act 2007 (Cth) (Act number 168 of 2007). In summary, the former Act made the following relevant amendments:

· New definitions were added to the interpretation section of the ACC Act (s 4(1)) to extend the ambit of the Commission’s function to include intelligence operations in relation to indigenous violence or child abuse. The new definitions applied to the following words or expressions: child, child abuse, Indigenous person, Indigenous violence or child abuse, relevant crime and serious violence.

· ‘Child abuse’ was defined as “an offence relating to the abuse or neglect of a child (including a sexual offence) that is punishable by imprisonment for a period of three years or more”. ‘Serious violence’ was likewise defined by a minimum penalty of three years. Most significantly, the expression ‘relevant crime’ replaced the expression “serious and organised crime”. ‘Relevant crime’ was defined to mean “serious and organised crime or Indigenous violence or child abuse.” The expression “Indigenous violence or child abuse” was defined in s 4 of the Act to mean: “serious violence or child abuse committed by or against, or involving, an Indigenous person”.

· Other definitional changes were made to extend the operation of the ACC Act to State agencies and staff.

· Ss 19A(1) and 19A(2), and 20(1) and 20(2) which allow examiners to request, or require, respectively, information from agencies were amended to require the examiner to comply with the new s 20A. That section describes the procedure for seeking information from a State agency and requires that where the Commonwealth Minister makes an arrangement with a State Minister - who may impose conditions on, for example, the types of information that may be sought and from which agencies it may be obtained - any such request for information must comply with that arrangement.

The latter Act made the following amendments which are relevant to these proceedings:

· S 28(1A) was amended to specify that the record of reasons for issuing a summons under s 28(1) can equally be made before, during, or after the issue of the summons. This applies to validate summonses issued before the amendment, if the record was made after the issue of the summons.

· Similarly, s 29(1A) was amended to specify that the record of reasons for issuing a notice under s 29(1) can be made before, during or after the issue of the notice.

SUBMISSIONS

25 At the hearing of this application, Mr Young appeared for the applicant and Ms Maharaj QC appeared for the respondent.

26 Mr Young submitted that the package of legislation that supported the Northern Territory Intervention included amendments to give the Commission powers to conduct intelligence operations in relation to child abuse (as set out above). He submitted that the applicant’s application in these proceedings seeks to set aside the Notice which was issued in pursuit of those new powers and therefore its application could be seen to involve an attack on a key aspect of the Northern Territory Intervention. He submitted that the public comments that I had made could be interpreted by a fair minded lay observer to mean that I have an adverse view of those people who attacked the Northern Territory Intervention, particularly where they were motivated by factors other than the genuine merits to which the Northern Territory Intervention was directed. Therefore, so he submitted, a fair minded lay observer might reasonably apprehend that I might view this application in the same light and might not bring an impartial mind to bear on the resolution of the issues that arise in these proceedings. In his written submissions, Mr Young referred me to the High Court’s decisions in Livesey v New South Wales Bar Assn (1983) 151 CLR 288, Johnson v Johnson (2000) 201 CLR 488 and Ebner v Official Trustee (2000) 205 CLR 337 (‘Ebner’).

27 Ms Maharaj QC submitted that this application was not made in a timely manner. She submitted that according to the affidavit material filed by the applicant, the applicant’s counsel had been in possession of the statements that the applicant now seeks to rely upon for nine days, and yet counsel only made this application on 24 June 2008, just days before the matter was due to be heard on 30 June and 1 July 2008. I took this submission to mean that in the circumstances the applicant had waived its right to bring this application. Ms Maharaj QC also submitted that the test for a reasonable apprehension of bias is one of possibility, rather than probability, and that the assessment has to be made objectively; from the viewpoint of a fair minded observer.

TIMELY MANNER AND WAIVER

28 In Vakauta v Kelly (1989) 167 CLR 568 (‘Vakauta’) the High Court held that a party to civil litigation who is legally represented and who is aware of circumstances giving rise to a right to object to a judge continuing to hear a matter based upon apprehended bias and who allows the matter to proceed before that judge without objecting promptly, is taken to have waived his or her right to do so: see 572 per Brennan, Deane and Gaudron JJ, 577 – 579 per Dawson J and 587 – 588 per Toohey J. This waiver principle was recently affirmed by the High Court in Smits v Roach (2006) 227 CLR 423 (‘Smits’) at [43] per Gleeson CJ, Heydon and Crennan JJ, at [61] per Gummow and Hayne JJ and at [125] per Kirby J.

29 Various reasons were given for this waiver principle in Vakauta. In the joint judgment of Justices Brennan, Deane and Gaudron (at 572) their Honours said:

‘The reason why that is so is obvious. In such a case, if clear objection had been to taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her’.

30 Justice Dawson gave similar reasons (at 577) and Justice Toohey (at 588) referred to the community interest in knowing that cases are being decided impartially. In Smits Justice Kirby referred to the public interest in the ‘manifest impartiality and independence of a judge’ and suggested that the notion that a party could waive this requirement was ‘in some ways, curious’ (at [124]). Nonetheless, his Honour was willing to accept the waiver principle because it was now settled law in Australia (at [125]).

31 In addition, it might be observed that timely objections also avoid a waste of costs for the parties, avoid a waste of court resources and assist in the efficient management of the court’s business by, among other things, avoiding having a judge who has managed a case and become familiar with it, disqualified by an apprehended bias objection raised at a late stage in the proceedings.

32 An issue related to the waiver principle is the issue of a judge making an early disclosure of any interest or association of which the judge may be aware. In Ebner, Chief Justice Gleeson and Justices McHugh, Gummow and Hayne described this as a ‘matter of prudence and professional practice for a judge’ (at [69]). Their Honours eschewed any attempt to describe the practice in terms of rights or duties, observing that any such duty to disclose would be a ‘duty of imperfect obligation’ (at [70]). In particular, their Honours noted that the disclosure of an interest such as the ownership of shares may be straight forward, whereas the disclosure of an association may raise more difficult questions because it would be difficult, for example, to identify all the kinds of association that may give rise to a serious possibility of disqualification (at [72]). In Ebner Justice Kirby also described disclosure as a matter of ‘prudence and desirability’ (at [171]). However, in Smits his Honour put the matter somewhat higher when he said it is ‘not just a question of prudence. It is part of the governing law.’ (at [102]). His Honour observed that disclosure:

‘… promotes transparency in the judicial process. It relieves the parties of inquiring into, or otherwise investigating, judicial interests and associations. It invites a timely and informed decision on the part of the judge, litigants and legal practitioners as to whether any disclosed interest should be waived. It removes a cause of judicial resentment or irritation when the question of disqualification is raised belatedly, as it was in this case. The practice of prior disclosure of any possible interests, statements, associations, relationships and extrinsic knowledge thus operates prophylactically. It helps to maintain respect for the integrity of judicial performance in the nation, as a model for the region and the building of the rule of law globally.’ (at [102]).

33 Whether it is a matter of prudence and professional practice or a legal obligation, the need to make such disclosures is a matter I have been conscious of since my (relatively recent) appointment to this Court. All the more so since my appointment is based in Darwin (a relatively small city by population size), the place where I have lived and practiced for approximately 25 years. In each new matter I have therefore endeavoured to identify from the materials filed whether there are any possible interests or associations that may give rise to an apprehension of bias on my part and to bring those matters to the attention of the parties at the first convenient opportunity. In the past seven months I have, not surprisingly, made such disclosures in a number of cases.

34 When this matter first came before me, it was in circumstances of some urgency in that the applicant was seeking an ex parte injunction to prevent the Notice issued by the Commission taking effect at midday. Although midday was only one hour after I began to hear the application, I did briefly consider the parties, the people involved and the issues identified in the materials filed by the applicant, to identify whether there was any possible interest, association or other matter I should disclose. I had no recollection of ever having had any dealings with the applicant, or the deponents to the affidavits filed by the applicant. I also had no recollection of ever having had any dealings with the Commission, or any officers of the Commission. Finally, I could not identify any aspect of the issues raised by the applicant that might give rise to a need to make a disclosure, in relation to my membership of the Taskforce, or any related matter. As it turns out, my association with the Northern Territory Intervention and my involvement in the Taskforce per se, were not matters the applicant relied upon in making this application. I confess I did not turn my mind to the kind of issue bias that has been raised by the applicant in this application.

35 In Vakauta the defendant waited until after final judgment before objecting to comments the judge had made during the trial of the proceedings. In Smits the objection to the relationship between the judge and one of the parties was not taken until after the judge had provided a draft of his final judgment to the parties and despite the fact that senior counsel for the objecting party was aware of the relationship in question from early in the proceedings.

36 In this matter, the public comments the applicant relies upon were made in August/September 2007, some ten months ago. The applicant’s solicitor explains why he did not act earlier by stating in his Affidavit that he was not aware of the comments until they were brought to his attention by counsel on 15 and 16 June 2008. Allowing for time to seek advice and take instructions, the applicant then made its application relatively promptly on 24 June 2008.This satisfactorily explains the delay so far as the applicant’s solicitor is concerned, however it leaves open the possibility that the applicant’s counsel, or the applicant itself, was aware of my public comments and the potential relevance of them to these proceedings before 15 June 2008, so that either, or both of them, should have acted earlier.

37 In relation to Mr Young, noting his duties to the Court as counsel, I do not suggest that he would have failed to inform the Court if he were indeed aware of my public comments and the importance of them to these proceedings, before 15 June 2008. As to the applicant itself, the applicant’s solicitor certainly has not stated in his Affidavit that the applicant was unaware of my public comments before he sought instructions on them from the applicant - sometime after 16 June 2008. However, Ms Maharaj QC did not seek to cross-examine Mr Medina on this aspect of his affidavit and, in those circumstances, I do not consider I should draw an inference that the applicant was aware of my public comments and the importance of them to these proceedings, at any time before 15 June 2008.

38 The only remaining aspect of the applicant’s conduct that could possibly constitute a waiver of its right to object as it has was its appearance before me on 20 June 2008 when the final hearing dates for the substantive application were confirmed. This was some four to five days after the existence and importance of my public comments were known to the applicant’s counsel, its instructing solicitor and, presumably, the applicant itself. While I consider it would have been preferable for the applicant’s solicitor, who appeared on that occasion, to have advised me that it was considering applying to have me disqualify myself, the applicant did make its application within a very short period of time thereafter, and before the substantive hearing commenced on 30 June 2008.

39 In all these circumstances, I do not consider that the applicant has intentionally waived its right to raise the objection it has. I will therefore proceed to consider the substance of its application.

THE APPREHENSION OF BIAS PRINCIPLE

40 In Ebner in the joint judgment of Chief Justice Gleeson and Justices McHugh, Gummow and Hayne, their Honours affirmed the various aspects of the ‘apprehension of bias’ principle that had been developed in a series of cases (listed in footnote 41) since The Queen v Watson; ex parte Armstrong (1976) 136 CLR 248 as follows:

· Absent actual bias, the test for disqualification on the basis of apprehended bias is: ‘a judge is disqualified 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’ (at [6]);

· ‘The question is one of possibility (real and not remote), not probability’(at [7]);

· ‘…[the test] requires no prediction about how the judge or juror will in fact approach the matter.’ (at [7]);

· The test involves a two-step process as follows (at [8]):

o First, ‘the identification of what it is said might lead the judge or juror to decide a case other than on its legal and factual merits’; and

o Second, ‘the logical connectionbetween that matter and the feared deviation from the course of deciding the case on its merits’;

· Judges have a duty to exercise their judicial functions and to hear those cases properly assigned to them, they are not at liberty to decline to hear cases without good cause. Any objection to them doing so must be based upon a substantial ground. The system would become intolerable if individual parties could influence the composition of a court by insubstantial objections (at [19] and [20]).

41 Their Honours also noted in Ebner (at [24]) that in Webb v The Queen (1994) 181 CLR 41 (at 74), Justice Deane had identified at least four distinct, though overlapping, categories of cases involving disqualification for apprehended bias: interest; conduct; association; and extraneous information. In fact, in Webb, Justice Deane extended the ‘conduct’ category to: ‘conduct including published statements’. While not adopting this categorisation as comprehensive/exclusive in Ebner, their Honours considered it provided a convenient frame of reference. As an example of the overlaps that may occur, their Honours pointed to the categories of interest and association and referred to the House of Lords decision in R v Bow Street Magistrate; Ex parte Pinochet Ugarte (No 2)[2000] 1 AC 119 (‘Pinochet’) (at [28]). Nonetheless, while accepting that the overlaps between these categories will probably give rise to some debate on this aspect, the bias raised by the applicant in this case would appear to best fall within the ‘published statements’ extension of the ‘conduct’ category described in Webb.

42 In the course of the joint judgment in Ebner (at [9] and [10]), their Honours referred to the English Court of Appeal decision in Locobail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (‘Locobail’) to make the point that the test for disqualification for bias (even though it is expressed somewhat differently in England) provides the most effective protection of the right to an impartial tribunal. Elsewhere in Locobail, the Court of Appeal set out a list of circumstances that it thought would, and would not, lead to disqualification for bias. While not ignoring the difference in the test for disqualification and noting the different social, political and constitutional circumstances in England (as to which, see: Thomas J B, Judicial Ethics in Australia (2^nd edition) at pp 147 and 233 – 237), I believe this list of circumstances provides some helpful guidance on the sorts of circumstances that may, and may not, lend to disqualification for bias. The list of circumstances is as follows (at [25] of Locobail):

‘Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interview, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers (see KFTCIC v Icori Estero Sp A. (Court of Appeal of Paris 28 June 1991, International Arbitration Report, vol. 6,8 8/91)). By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalance terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly (1989) 167 CLR 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.’ (My emphasis)

43 The words ‘prejudices and predilections’, that I have emphasised in the quote from Locobail (above), were also used by Justice Hayne in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 to describe what is meant by ‘bias’ in this context, as follows (at [183], Gleeson CJ and Gummow J concurring at [100]):

“… it is necessary to consider more closely what is meant by ‘bias’ and ‘apprehension of bias’. ‘Bias’ is used to indicate some preponderating disposition or tendency, a “propensity; predisposition towards; predilection; prejudice.” It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is “any thing which turns a man to a particular course, or gives the direction to his measures.”

44 Justice Hayne developed these concepts further at [185] – [186] as follows:

“Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that:

‘preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it “does not follow that the evidence will be disregarded.” [emphasis added] (R v London County Council; Ex parte Empire Theatre (1894) 71 LT 638 at 639 per Charles J.)

Allegations of apprehended bias through prejudgment are often dealt with similarly.”

45 Earlier, his Honour described the different constraints that apply to judicial decision-makers and the different circumstances in which they make their decisions as follows (at [178] – [179]):

‘Courts in this country make decisions by procedures that are both formal and adversarial. They do so by the application of rules for decision-making which, although not always defined with absolute certainty, are generally discernible before the contest is joined and are set by legislative or judicial processes which are external to the judge. The process of adjudication is generally conducted in open court. The judge must give reasons for the decision that is reached.

Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. No less importantly, the rules about judicial prejudgment proceed from the fundamental requirement that the judge is neutral. That requirement for neutrality is buttressed by constitutional and statutory safeguards. Those safeguards include not only the provisions for security of terms of office and remuneration but also extend to statutory provisions prohibiting interference with the course of justice. A judge can have no stake of any kind in the outcome of the dispute. The judge must not “[descend] into the arena and … have his vision clouded by the dust of the conflict.’ The central task and, it may be said, the only loyalty, of the judge is to do justice according to law.”

46 To my mind, the observations by the English Court of Appeal in Locobail and by Justice Hayne in Jia indicate that when an allegation of apprehended bias is based upon an expression of opinion by a judge, it is not so much that the opinion expressed may indicate some propensity, disposition or predilection on the judge’s behalf that is critical. What is critical is that there is some real ground or real basis for concluding, in all the circumstances, that the judge will apply that opinion in the case at hand regardless of the facts and arguments presented in that case. Moreover, when the decision maker is a judge any consideration of this critical issue has to take account of the rules, processes and legal requirements that apply to the decision making role of all judges in Australia.

47 The High Court has also made it clear in a number of decisions before and after Ebner that apprehended bias must be ‘firmly established’: see The Queen v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 553 - 554, R v Lusink; Ex parte Shaw (1980) 32 ALR 47 at 50 – 51, Re JRL; ex parte CJL (1986) 161 CLR 342 at 532 and Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka (2001) 206 CLR 128 at 158.

48 As to the level of knowledge that the fair minded lay observer is imputed to have, in Johnson v Johnson (2000) 201 CLR 488 Chief Justice Gleeson and Justices Gaudron, McHugh, Gummow and Hayne observed (at [13]) that:

‘Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.’

49 Before that, in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87, Chief Justice Mason and Justice Brennan said:

‘While it would not be proper to attribute to the fair minded observer the understanding that a lawyer would have of the capacity of the members of the Tribunal to make a independent decision uninfluenced by previously expressed opinions and conflicting interests (see Vakauta v Kelly (1989) 167 CLR 568), such an observer must be taken to appreciate that the defence filed by the Tribunal do not amount to assertions of belief or admissions.’

50 More recently, in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55 at [177], Justice Callinan observed:

‘It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly, a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.’

See also: Galea v Galea (1990) 19 NSWLR 263 at 279 per Kirby ACJ and Bowesco Pty Ltd v Zohar [2007] FCAFC 1 at [35] to [38].

51 Finally, on this aspect, Justice Lander provided, with respect, a good summary of most of these authorities in Australian Securities and Investment Commission v Reid [2005] FCA 1274 at [110] as follows:

‘In summary, therefore, the inquiry is into the reaction of an observer who is reasonable and fair-minded, who has a general understanding of the facts and circumstances surrounding the case, who is not a lawyer but is not wholly uninformed and uninstructed about the law in general, and who would ordinarily think that a judge will act so as to ensure both the appearance and substance of fairness and impartiality without at the same time rejecting the alternative possibility. In a case such as this, the bystander will understand the Court’s obligation which, if not maintained, will be enforced on appeal to act fairly and impartially.’

52 Albeit that it was delivered some 14 years before Ebner (but well after the first of the cases where the apprehension of bias principle was expounded), the examination of the connection between the identified cause of a possible disqualification and the issues that the judge or tribunal had to determine, was a matter that was considered by the Full Court of this Court in Attorney-General (NT) v Maurice (1987) 17 FCR 422. In that case an Aboriginal Land Commissioner (‘the Commissioner’) appointed under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the ALRA’) was dealing with two Aboriginal land claims lodged under the ALRA – the Warumungu Land Claim and the Kenbi Land Claim. During the course of hearing the Warumungu Land Claim, the Commissioner made some comments that were highly critical of the Northern Territory Government. The Full Court described those comments in these terms: ‘Statements and conduct [that] could reasonably be regarded as severely critical of the competence of the Northern Territory Government and as casting aspersions upon its integrity concerning its policies in relation to pastoral leases in the Northern Territory’(at 441).

53 With this in mind, the Full Court considered the issues that the Commissioner had to decide in each land claim to determine whether or not he should be disqualified for apprehended bias. In the Warumungu Land Claim, the Full Court held that the comments made by the Commissioner had no relevant bearing on the issues to be decided and that it could not be reasonably apprehended that the Commissioner might not resolve the issues before him in a fair and unbiased way (at 440 - 441). The Full Court therefore concluded that any evident attitude of the Commissioner’s disaffection with the Northern Territory Government and its policies in relation to land tenure and other matters, could not, in its view, reasonably be said to call for the Commissioner’s disqualification in that land claim (at 441).

54 The Full Court then considered the Kenbi Land Claim. It noted that in that land claim, the Commissioner had to embark upon an inquiry into the reasons why the Administrator of the Northern Territory made certain planning regulations under the Planning Act (NT) (No. 55 of 1999). In particular, the Commissioner had to determine whether the relevant regulation (Regulation 5) had been made for an improper purpose, namely of defeating the Kenbi Land Claim. The Full Court noted that in the process of making that determination, the Commissioner would be required to determine the bona fides of members of the Northern Territory Government in making the Cabinet decision which led to the making of the Regulation in question (at 441 – 442). Their Honours observed (at 442) that this issue was significantly different to the issues the Commissioner had to decide in the Warumungu Land Claim and ultimately concluded that the Commissioner should be disqualified from hearing the Kenbi Land Claim on the basis of the remarks he made about the Northern Territory Government because: “It might reasonably be apprehended by a fair-minded person that the Commissioner might not resolve the questions … relating to the validity of the Planning Regulations with a fair and unprejudiced mind.”

55 In my opinion this decision provides a practical example of the application of the second step described in Ebner and the need, in that step, to look closely at the logical connection between the matter that is said to give rise to the concern about a lack of impartiality and the issues that have to be decided in the proceedings. Finally, I note that another, more recent, example of the application of the second step in Ebner is contained in the decision of Justice Tobias in City of Canada Bay Council v Bonaccorso Pty Ltd (No.2) [2007] NSWCA 368, particularly his Honour’s conclusions at [17] and [18].

CONSIDERATION AND DECISION

56 Taking into account all of these authorities, I now turn to consider the two steps involved in the application of the apprehension of bias principle as set out in Ebner. The first step is to consider: what is it that might lead to me deciding this case other than on its legal and factual merits?

57 Mr Young submitted that my public comments demonstrate that I have an adverse view or opinion of those people who had attacked the Northern Territory Intervention, particularly where they are motivated by factors other than the genuine merits to which the Northern Territory Intervention is directed. Accepting this characterisation for present purposes, and assuming that it states the position, at its highest, for the applicant, the question that then arises is: might my public comments be interpreted by a fair minded and objective observer in this way?

58 In answering this question, I keep in mind the following matters (among others): that it is not how I will actually approach the determination of the issues in this matter, but how a fair minded lay observer reasonably considers I might; that it is a question of real (not remote) possibility not probability; that the fair minded lay observer will be aware that all judges ordinarily ensure both the appearance and substance of fairness and impartiality and that all judges in Australia are subject to various rules, processes and legal requirements in their decision making role; that bias whether apprehended or actual, must be firmly established; and that there must be some real ground for concluding, in all the circumstances, that I will apply this opinion to the issues that fall to be determined in these proceedings, regardless of the facts and arguments that are presented.

59 In my opinion, such a fair minded lay observer would not reasonably interpret my public comments in this way. This is so for the following reasons. First, my public comments could not possibly be interpreted as referring to the applicant, either individually, or as a member of any identifiable group. Certainly the applicant did not remotely fall within the two groups of people who I had criticised in either the Nowra comments, or the Counterpoint comments, namely that group of people who were attacking those people who had drawn attention to the high levels of child abuse and domestic violence on Aboriginal communities in the Northern Territory, or that group of people who comprised the Northern Territory politicians who were attacking the Northern Territory Intervention (respectively).

60 Secondly, the applicant could not reasonably be said to be a person who is “attacking” the Northern Territory Intervention by legitimately commencing proceedings in this Court seeking to challenge a decision of an officer of the Commission. Therefore, the applicant could not reasonably be said to be the subject of this adverse view or opinion (above), if I held it.

61 Thirdly, there is no real ground for concluding that if I did hold this adverse view or opinion (above), I would apply it regardless of the facts and arguments presented in these proceedings. My public comments were not made in the course of these proceedings and they did not relate directly or indirectly to a person involved in these proceedings (see above), nor did they relate directly to any issue that arises in these proceedings, unlike, for example, the situations that arose in Webb, Vakauta or Maurice. To the contrary, my public comments were made some time ago i.e. ten months, in circumstances far removed from these proceedings i.e. in a public forum and in the national media, about matters of current affairs, that are, at their highest, only very generally connected to the issues in these proceedings. Moreover, there is nothing about the nature of my public comments, or about the circumstances in which they were made, that provides any ground, let alone one that is real, or firmly established, that I would apply the opinions expressed, regardless of the facts and arguments presented in this case. All the more so, when one takes into account that in determining the issues in this case, I will be required to ensure both the appearance and substance of fairness and impartiality and be subject to the usual rules, processes and legal requirements that apply to all judges in Australia.

62 For these reasons, I do not believe that the fair minded lay observer might reasonably interpret my public comments in the way in which the applicant says that they would be interpreted.

63 Nonetheless, in case I am wrong in that conclusion, I will proceed to consider the second step in Ebner. Namely, what is the logical connection between the matter complained of by the applicant and the feared deviation from deciding the issues in these proceedings on their merits. In doing so, I will assume for the purposes of the argument that the interpretation of my public comments put by the applicant (above) is the interpretation that would be adopted by the fair minded lay observer.

64 As the authorities I have referred to show, this step requires a careful consideration of the issues that have to be determined in these proceedings. In that consideration, I must keep in mind that the fair minded lay observer is taken to have a general understanding of the facts and circumstances surrounding these proceedings, but he or she should not be assumed to have the same level of understanding as a lawyer. Nonetheless, he or she is not uninformed and uninstructed about the law in general. I also keep in mind that the fair minded lay observer is aware of the duty all judges have to determine matters fairly and impartially and is aware they are subject to various rules, processes and legal requirements in their decision making role.

65 With these considerations in mind, I consider the fair minded lay observer would be taken to understand that the central issues that arise for determination in these proceedings are whether or not the Notice issued by the examiner pursuant to s 29 of the ACC Act was properly and validly issued and this will require me to construe the provisions of s 29 of the ACC Act and to determine whether, among other things, the examiner properly took into account all relevant matters and did not take into account irrelevant matters in deciding to issue the Notice. I consider the fair minded lay observer would be taken to know that in making this determination I am not able to look into the merits of the examiner’s decision to issue the Notice, nor am I able to look at the merits or motives of the applicant’s decision to issue these proceedings.

66 While all these matters require some knowledge of the law beyond that of the general population, I consider they all fall within the knowledge of a lay observer who is not wholly uninstructed and uninformed about the law. In my opinion, they are similar to the level of knowledge imputed to the lay observer in Laws who was taken to be aware of the status of assertions in pleadings.

67 It follows that, even if it is assumed that my public comments were to be interpreted in the way put by the applicant ie as indicating an adverse view or opinion of the applicant’s application as an attack on the Northern Territory Intervention, there is, in my opinion, no logical connection between that view or opinion and the issues I will have to determine in these proceedings. This is so because the issues in these proceedings involve the application of established legal principle to the decision of the examiner to issue the Notice. Conversely, they do not involve any consideration of the merits of the examiner’s decision to issue the Notice, nor, more importantly, any consideration of the merits or motives of the applicant’s decision to issue these proceedings.

68 For these reasons, I dismissed the applicant’s Notice of Motion dated 24 June 2008 on 26 June 2008.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated: 14 July 2008

Counsel for the Applicant:	Mr A Young

Solicitor for the Applicant:	Midena Lawyers

Counsel for the Respondent:	Ms S Maharaj QC

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	24 June 2008

Date of Judgment:	14 July 2008

Top