FEDERAL COURT OF AUSTRALIA
Luck v Secretary, Department of Human Services [2017] FCA 540
ORDERS
Appellant | ||
AND: | SECRETARY, DEPARTMENT OF HUMAN SERVICES First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent STEPHANIE FORGIE (AS DEPUTY PRESIDENT) Third Respondent | |
DATE OF ORDER: | 18 mAY 2017 |
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KERR J:
1 I am one of three judges of the Federal Court of Australia (Federal Court) who the Chief Justice has determined should hear an appeal in Luck v Secretary Department of Human Services VID 1044 of 2016.
2 On 21 March 2017 Ms Luck (the Applicant), the Appellant in that proceeding, filed an interlocutory application requesting that I recuse myself from hearing that appeal.
3 The Applicant sought the following orders:
1. That his Honour, Justice Kerr, recuse himself from the hearing and determination of this matter Gaye Luck v Secretary of Department of Human Services and Others VID 1044/2016, VID 65/2010 on the ground the appellant apprehends bias, as his Honour is the current President of the Administrative Appeals Tribunal (AAT) and should not be hearing and determining any matter in which the AAT or any Member of the AAT is a party to the proceeding. Such is the case in this matter.
2. That costs be reserved.
4 I listed the application, inter alia, for a directions hearing to be conducted by telephone at 10.15am on 30 March 2017.
5 My Associate sent an email to the parties requesting that any written submissions relevant to the directions hearing be filed and served no later than 4.00pm on 29 March 2017.
6 The First Respondent (the Respondent) filed short written submissions. Those submissions referred to the principles stated by the High Court of Australia (High Court) in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner). The Respondent submitted that having regard to those principles my recusal was not required [5]-[11].
7 Nothing was filed by the Applicant by 4.00pm on 29 March 2017, nor had any submissions been filed electronically in the Court by 10.15am on 30 March 2017 when the directions hearing was scheduled.
8 In those circumstances, at the commencement of the directions hearing (via telephone) at which the Applicant appeared in person and Ms Maud appeared as counsel for the Respondent, I indicated that I intended to set a timetable for written submissions and to determine the application on the papers after considering them.
9 The Applicant however indicated that she had prepared dot point submissions and wanted to make oral submissions that morning.
10 I agreed to hear the Applicant’s oral submissions. I also indicated that in fairness I would allow her and the Respondent time to file additional written submissions should they be so advised.
11 That indication proved unwelcome.
12 The Applicant told the Court that she would make oral submissions only if I was prepared to decide her recusal immediately.
13 Given there was nothing on the file or otherwise before me to anticipate what might be submitted or to permit consideration of whether an ex tempore decision might plausibly be delivered I did not give that undertaking.
14 The Applicant responded that she had been in enough hearings to understand how the process should work. Other judges, with the exception of Bromberg J which she was not happy about either, had not waited to make decisions when she had sought their recusal. She expressed her belief that the case was being manipulated against her.
15 The Applicant submitted I appeared to be acting “under the instructions of the Minister”.
16 She would not make oral submissions unless I promised to make a decision the same day.
17 When I did not give that undertaking the Applicant informed the Court that she was feeling “agitated” and that my “immediate refusal to hear this and decide it today” had really upset her. She advised unless I promised to make the decision she would withdraw from the directions hearing.
18 I indicated that I would hear her oral submissions but would not be in a position to make a considered judgment without the opportunity to reflect upon whatever she might advance by way of reasons orally or on paper. Thereupon the Applicant advised that she was “feeling persecuted,” that it was “traumatising” for her, and that she was “unable to continue with the hearing.” She advised she was withdrawing from the directions hearing and did so by ending the phone call.
19 The Applicant having so withdrawn, I made orders that she file and serve any written submissions she might wish to rely on and any materials in support of her application for my recusal no later than 4.00pm on Friday 7 April 2017.
20 After the time had expired under the order the Applicant filed written submissions, at 4.26pm on 7 April 2017. Her submissions state that they were filed by eLodgment on 30 March 2017. That assertion is contrary to what appears in the Court’s electronic file and I reject it as inconsistent with the fact. However, notwithstanding the lateness of their filing I have taken the Applicant’s late submissions into account. The Applicant did not file a supporting affidavit or any other materials.
The asserted constitutional issues
21 The Applicant’s submissions however did not address what might be described as the ‘ordinary’ considerations relevant to whether or not a judge should recuse him or herself. Instead they assert that the question of my recusal for apprehended and actual bias in respect of the hearing of the Applicant’s appeal in Luck v Secretary, Department of Human Services (No 4) [2016] FCA 950 involved a number of “constitutional issues.”
22 Those constitutional issues were submitted to arise by reason of my also holding the additional commission as President of the Administrative Appeals Tribunal (AAT). Although Ms Luck’s interlocutory application (which remains unamended) did not seek orders other than my recusal, the Applicant’s written submissions argue inter alia that she is entitled to a declaration that s 7 of the Administrative Appeals Tribunal Act 1975 (AAT Act) is invalid.
23 Section 7 is as follows:
Qualifications for appointment
President
(1) A person must not be appointed as the President unless the person is a Judge of the Federal Court of Australia.
Deputy President
(2) A person must not be appointed as a Deputy President unless the person:
(a) is a Judge of the Federal Court of Australia or the Family Court of Australia; or
(b) is enrolled as a legal practitioner (however described) of the High Court or the Supreme Court of a State or Territory and has been so enrolled for at least 5 years; or
(c) in the opinion of the Governor-General, has special knowledge or skills relevant to the duties of a Deputy President.
Senior members and other members
(3) A person must not be appointed as a senior member or other member unless the person:
(a) is enrolled as a legal practitioner (however described) of the High Court or the Supreme Court of a State or Territory and has been so enrolled for at least 5 years; or
(b) in the opinion of the Governor-General, has special knowledge or skills relevant to the duties of a senior member or member.
24 The Applicant has not taken any steps to comply with r 8.11 of the Federal Court Rules 2011 that requires a party who raises a constitutional matter to file a notice in the proper Registry of the Court stating the nature of that matter and the facts showing that it is one to which the rule applies or r 8.12 which requires service of a copy of that notice on the Attorneys General of the Commonwealth and the States.
25 On 5 May 2017 my Associate wrote to the parties as follows:
Dear Parties
Please find this email regarding the Applicant’s recusal application.
In respect of that application, for Justice Kerr to recuse himself from the hearing of the above appeal, there are two matters that His Honour has identified as potentially relevant to whether that application involves a matter or matters arising under the Constitution or involving its interpretation.
The first consideration is that Justice Kerr’s appointment as a Judge of the Federal Court of Australia and his acceptance of his additional commission as President of the Administrative Appeals Tribunal (Tribunal) post-dates when the Tribunal as constituted by Deputy President Forgie heard and decided Luck and Department of Human Services [2010] AATA 6.
The second consideration is that Justice Kerr’s commission as President of the Administrative Appeals Tribunal will expire on 15 May 2017 prior to the hearing of the Applicant’s appeal.
If either party wishes to file and serve supplementary written submissions regarding the relevance or otherwise of those considerations to that issue they have leave to do so not later than 4pm on 16 May 2017.
26 The Applicant filed no further submissions. The Respondent filed supplementary submissions. Given that these reasons address the issues referred to in the supplementary submissions it is not necessary to set them out.
27 However on 8 May 2017 Ms Luck filed an application in the High Court inter alia seeking referral of a question of law to be determined by the Full Court of the High Court, prior to my determination of her application for my recusal:
Whether the doctrine of the separation of the powers of the judicature, the executive and the legislature, as set out in the Constitution, would be breached by the Court and his Honour, Justice Kerr [the senior presiding judge in the Full Court appeal VID1044 of 2016], if the principle enunciated in the case of Wainohu v New South Wales (2011) 243 CLR 181, is applied?
Her application also sought a stay of her appeal pending the hearing and determination of that question by the Full Court.
28 No referral has been made. Nor has a stay been ordered. Accordingly it remains my duty to determine her application.
29 However, independently of any steps taken or not taken by the Applicant, the nature of the submissions advanced by her require me to give consideration as to whether the relevant provisions of s 78B of the Judiciary Act 1903 (Judiciary Act) have been engaged.
30 Assuming one or more of the issues in the Applicant’s recusal application, properly understood, involve a matter or matters arising under the Constitution or involving its interpretation it is my duty pursuant to that provision not to proceed to determine that issue or those issues unless and until satisfied that notice of the cause, specifying the nature of the constitutional matter(s), has been given to the Attorneys General of the Commonwealth and the States and a reasonable time has elapsed since the giving of that notice to allow the Attorneys General to consider whether to intervene in the proceeding or seek the removal of the cause to the High Court.
31 Whether a proceeding involves a matter arising under the Constitution or involving its interpretation is a question for the Court to determine: Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) (2010) 184 FCR 516 (Sagacious) at [12]-[14]. Section 78B has been held not to be engaged unless the constitutional point is at least arguable and its determination is required. As French J (as he then was) held in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292 (Berbatis Holdings) at [13], that “a matter should ‘really and substantially arise under the Constitution’ before it attracts the operation of s 78B”. Whether that is the case in the instance of the Applicant’s request for my recusal therefore requires legal analysis to be applied to the relevant facts.
32 A “cause does not “involve” a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does”: Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 (Finlayson) per Toohey J, at 74. While I have no reason to doubt that Ms Luck holds a genuine belief that her application cannot be decided without the High Court addressing and determining the constitutional issues she contends have arisen, her belief is not sufficient to make it so; Green v Jones [1979] 2 NSWLR 812 at 817-18, Sagacious per Rares J at [13].
33 Having regard to the principles enunciated in Sagacious and Berbatis Holdings, in the specific facts of this application, no relevant constitutional issue need be determined in order for the Court to decide the application before it. The application for my recusal properly can be dealt with without me being required to decide a matter arising under the Constitution or involving its interpretation.
34 Four threshold considerations underlie my conclusion in that regard.
35 First, my appointment as a Judge of this Court and my acceptance of an additional commission as President of the AAT both occurred some two years after the AAT as constituted by Deputy President Forgie made the decision in Luck and Department of Human Services [2010] AATA 6 (Luck). While that decision may be the underlying subject of the Applicant’s appeal there is nothing asserted by Ms Luck that would connect my later appointment with that decision as could plausibly give rise to a constitutional issue.
36 Second, my additional commission as President of the AAT expired on 15 May 2017. I no longer hold that office.
37 Third, the appeal to be determined by the Full Court of the Federal Court is not an appeal from the decision of the AAT as constituted by the Deputy President but from a decision of Bromberg J, a Judge of this Court. Conceptually such appeals involve different tasks. The questions the Full Court will be required to determine are whether his Honour erred and, if so, what orders should be made in consequence. Reviewing a decision of a fellow judge to determine whether or not they have fallen into appealable error is a routine duty of a judge of this court when the Chief Justice determines he or she should sit as a member of a Full Court.
38 Fourth, assuming (without accepting) that what Pearce recently wrote (Pearce D, Administrative Appeals Tribunal, 4th ed, Lexis Nexis 2015, at 2.1 ):
It is competent for a person who is a judge of a court created by the Commonwealth Parliament to hold such an office: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 at [24]; (1996) 189 CLR 1 at 17; 138 ALR 220 at 231. The fact that there may be constraints placed upon the exercise by the Tribunal of its functions is not in itself sufficient to make the function incompatible with its being performed by a judge: Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241; 103 ALD 66.S
by reason of further (necessarily to be supposed) evolution of Australian constitutional doctrine is no longer good law, the consequence would not be that my commission as a Ch III judge would be terminated or otherwise affected.
39 Rather, any impermissible functions conferred on me as a judge of the Federal Court would be invalid (Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181).
40 As the Respondent’s submits, a determination of the question whether or not it is constitutionally permissible for me to hold an additional commission as President of the AAT therefore could not affect the validity of my primary commission as a Ch III judge.
41 Nothing contrary to that proposition was advanced by the Applicant.
42 In any event, had such a submission been pressed, in the light of such authorities, I would have rejected it as being unarguable. Notice pursuant to s 78B need not be given of an unarguable proposition: Nikolic v MGICA Ltd [1999] FCA 849; Berbatis Holdings per French J at [14].
43 Having regard to those threshold considerations, the constitutional issues the Applicant claims arise need not be determined to decide this interlocutory application. The factual substratum asserted by the Applicant does not exist – I neither was serving as President of the AAT when the relevant decision was made nor do I any longer hold that office. Moreover, for the reasons set out at [38] and [39] above the legal consequences would not be as the Applicant apprehends.
44 Applying the principles established in Sagacious and Berbatis Holdings I have concluded that s 78B of the Judiciary Act does not require me to refrain from proceeding to decide the application for my recusal pending notice having been given to the Attorneys General of the constitutional issues that have been asserted by the Applicant to have arisen.
Principles governing an application for a judge’s recusal for apprehended bias
45 Having so concluded I turn to the well-established legal principles that govern an application for a judge’s recusal.
46 As the Respondent submits, the leading authority in relation to apprehended bias is Ebner. In that case Gleeson CJ, McHugh, Gummow, and Hayne JJ at [6] stated:
…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.
47 Their Honours continued at [8]:
Its application requires two steps. First, it requires the identification of what it is said that might lead a judge…to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge...has an “interest” in litigation or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
48 The propositions stated by the plurality in Ebner have been reaffirmed in Isbester v Knox City Council [2015] HCA 20 by Keifel, Bell, Keane, and Nettle JJ at [21]-[22].
49 Because Ms Luck is self-represented I have sought to identify and address any issues capable of being put in favour of that application.
Subjective apprehension
50 Is the Applicant’s apprehension that I may be biased a sufficient reason for me to recuse myself?
51 Consistently with Ebner it is settled law that an application for recusal, as in this application, on the grounds of apprehended bias is to be determined on the basis of what a fair minded lay observer might reasonably apprehend.
52 What such an observer would apprehend is not to be confused with the apprehension of the person who has sought the judge’s recusal, however strongly his or her apprehension has been expressed.
53 Unless a judicial officer is satisfied that the Ebner test has been met a judge’s duty is to undertake the matter allocated to him or her rather than to yield to any application for recusal insufficiently established.
54 The subjective sincerity of the Applicant’s apprehension that I might be biased may be accepted but that is not the test. I therefore reject that as a basis for my recusal.
The fair minded lay observer
55 Is there a reason for a fair minded lay observer to apprehend that because I have recently held an additional commission as President of the AAT that I would not be impartial if I sat on an appeal in which the correctness of the decision in Luck would be in issue?
56 In my view, the facts that the review was concluded prior to my becoming President of the AAT and that I no longer hold any additional commission standing alone would satisfy a fair minded lay observer that there was no basis to apprehend that I would not be impartial if I sat on an appeal in which the correctness of that decision was in issue.
57 It is however worth making some additional observations to address what may be misunderstandings regarding the manner in which decisions are made in the AAT.
58 Some boards, tribunals and commissions may be established such that their decisions take their form and force as a decision of the entity. Assuming a judge was a member of such a body, a fair minded lay observer might apprehend that the judge might struggle to bring an impartial mind to the resolution of a question requiring adjudication on the correctness of a decision taken by a collective body of which the judge was a member, even if he or she had not participated in the making of a particular decision.
59 However, where decisions are not made such that they involve the judge different considerations arise: Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 (Helow).
60 The AAT does not make decisions or conduct reviews as a corporate body.
61 The independence of each member of the AAT is built into the statutory architecture of the AAT.
62 Each of its members are appointed by the Governor-General (AAT Act s 6). During the currency of their terms they may be removed only upon an address of both Houses of Parliament in the same term (AAT Act s 13). Members of the AAT have the same protections and immunity in the conduct of their duties as has a Justice of the High Court (s 60(1)).
63 Once a hearing has commenced, references to the “Tribunal” in the AAT Act are references to the AAT “as constituted for the purpose of the proceeding.”
64 The operative provisions of the Act refer to the Tribunal as defined (s 3):
(a) means the Administrative Appeals Tribunal established by this Act; and
(b) in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; and
(c) includes a member, or an officer of the Tribunal, exercising powers of the Tribunal.
(emphasis added)
65 A “proceeding,” in relation to the Tribunal is to include (s 3):
(a) an application to the Tribunal for review of a decision; and
(b) an application to the Tribunal under subsection 28(1AC); and
(c) an application to the Tribunal for review of a taxing of costs; and
(d) an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and
(e) an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and
(f) any other application to the Tribunal under this Act or any other Act; and
(g) any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(h) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.
66 Thus, depending on its context Tribunal, as defined in the AAT Act, conveys one of two, mutually exclusive, meanings.
67 Generically it refers to the whole of the organisation as established by the AAT Act.
68 However, when applied “in relation to a proceeding” to the AAT “as constituted” for the purposes of that proceeding. Once a hearing has commenced the functions and powers of the AAT are conferred exclusively on the particular member or members who constitute the Tribunal for that review.
69 A member, whether a judge or otherwise, having been constituted as the Tribunal for a proceeding, is independently responsible for the exercise of the powers and duties of the AAT in respect of that proceeding. The member alone makes the decision (1419015 (Practice and Procedure [2016] AATA 3075 (29 January 2016)).
70 Unless the President has constituted the Tribunal with him or herself as a member for a particular proceeding, he or she is not a member of the “Tribunal” and has no role in any such “proceeding”.
71 The President has no capacity to direct a member as to how they should conduct their management of a hearing or in respect of their decision making. If a Tribunal has been constituted by 2 or 3 members s 42 of the AAT Act governs how disagreements between them are to be resolved.
72 The AAT as an entity does not, and cannot, make decisions under s 43 of the AAT Act. It is the Tribunal as constituted which does so.
73 That statutory guarantee of independence of each member of the AAT has remained relevantly unchanged since the AAT Act was passed in 1975.
74 In consequence of my having accepted an additional commission as President of the AAT I did not thereby become part of an institution collectively responsible for its decisions.
75 Deputy President Forgie was constituted as the Tribunal in Luck. She had independent responsibility for the conduct of that hearing. The decision in that review was made by her and her alone. Both as a matter of fact (that all having occurred prior to my appointment) and law (as discussed above) the contrary proposition is unsustainable.
76 Should I sit as one of the three judges of the Federal Court whom the Chief Justice has determined should hear the appeal in Luck v Secretary Department of Human Services VID 1044 of 2016 I will not be deciding an issue involving the correctness or otherwise of a decision I played a part in making or capable of being attributed to me as a result of my (former) membership of the AAT.
77 Of course the hypothesised fair minded lay observer referred to in Ebner cannot be expected to have a detailed knowledge of the AAT Act.
78 However a fair minded lay observer does not make “snap judgments” (Johnson v Johnson (2000) 201 CLR 488 at [14] (Johnson)); and is “neither complacent nor unduly sensitive or suspicious” (Johnson at [53]). Where the decision maker is a judicial officer the fair minded lay observer (the reasonable observer) will have regard to the fact that a judge’s “training, tradition and oath or affirmation” of office can be expected to equip the officer with the ability “to discard the irrelevant, the immaterial and the prejudicial”: Johnson at [12]. The fair minded lay observer must also be attributed to have knowledge of “all the circumstances” of the case: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4. Although not taken to be a lawyer, the reasonable and fair minded hypothetical person is to be taken to be informed about the core considerations relevant to his or her arriving at an apprehension that a judge might be biased.
79 As Lord Hope of Craighead said in Helow at [3]:
Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.
80 As his Lordship held, the person is of the sort who “always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious…” (at [2]).
81 A fair minded lay observer who took the trouble to inform him or herself on matters relevant to how decisions are made in the AAT would have ascertained, either from an examination of the AAT Act or by reference to readily available texts such as Pearce, that the law provides for and protects the independence of each of its members as they alone are responsible for the decisions they make. The fair minded lay observer would have ascertained, analogously to the position applying in this Court where the Chief Justice allocates work to judges but has no power of direction over their decision making, that once a member of the AAT has been constituted as the Tribunal and has commenced a hearing the President has no power of direction over them in the performance of their duties.
82 A fair minded lay observer would think it fanciful that my appointment as President of the AAT would conflict with my judicial duty to bring an impartial mind to the resolution of whether Bromberg J erred in dismissing the three grounds of appeal remitted to him to by an earlier Full Court of the Federal Court.
83 While it may be accepted that Ms Luck has strong concerns that I may not be impartial, those concerns disregard the timing of my appointment and are based on an incorrect understanding of the basic institutional structures of this Court and the AAT. As such those concerns would not be shared by the hypothetical fair minded lay observer.
84 No question of actual or apprehended bias for that reason therefore arises.
Prior professional relationships
85 A fair minded lay observer would not apprehend that a judge who had held an additional commission as President of the AAT might decide an appeal as a member of a Full Court other than on its legal and factual merits because of personal knowledge of the decision maker in the Tribunal.
86 The Applicant has made no submissions that my relationship with Deputy President Forgie was other than professional.
87 While some State Supreme Courts have established separate and distinct Courts of Appeal the Australian judicial system does not require that a distinct and separate group of judges be established to determine appeals.
88 A judge of the Federal Court sitting as a member of a Full Court to determine an appeal from a decision made by another judge of the same Court knows the expectations of them and that their training, tradition and oath of office will require them to put aside any considerations of sentiment arising by reason of the fact that they are also a colleague of the first instance decision maker whose decision is the subject of challenge.
89 The hypothetical informed fair minded observer discussed above would know that to be the case.
90 A fair minded lay observer might correctly suppose that judges may well have formed some opinions, for good or ill, about their colleagues. However, they would not apprehend that such a judge should be disabled from hearing an appeal because of their professional relationship with the colleague whose decision was the subject of an appeal.
91 As was noted by L’Heureux-Dube and McLachlin JJ in R v S (RD) [1997] 3 SCR 484 at [119]:
…the duty to be impartial ‘does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet….Rather, the wisdom required of a judge, is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.
(citations omitted)
92 The informed fair minded observer would know that the judicial oath taken by all judges requires them to determine all matters on their legal and factual merits. Subject to proof to the contrary (of which I am aware of no examples) a fair minded lay observer would accept that it can be expected of any judicial officer that they will be capable of setting aside as irrelevant any personal regard they may have for a fellow judge.
93 A fair minded observer would similarly conclude that dispassion is to be expected of a judge if he or she is called on to determine an appeal involving the correctness or otherwise of a decision of a member of another court or tribunal upon which he or she has held an additional commission.
94 Nor would an informed fair minded observer apprehend that a Ch III judge would hesitate to correct an error made by a former colleague in a tribunal in which they had held an additional commission out of misplaced institutional solidarity.
95 Our legal system is built on the assumption that courts and tribunals hold and retain public confidence precisely because their decisions are subject to appeal not in spite of that.
96 Correction of error does not undermine or damage a tribunal whose judges or members may be held to have erred; rather the availability of rights of appeal and judicial review strengthens public confidence in the rule of law.
97 An informed fair minded observer would have regard to the fact that a judge’s training, tradition and oath or affirmation of office can be expected to equip him or her with the ability to discard the irrelevant, the immaterial and the prejudicial: Johnson at [12]. If error was to be established on the part of the Tribunal as constituted any such judge would know it to be their duty to correct it, not to turn a blind eye. It is unthinkable that a fair minded lay observer would suppose otherwise.
98 From its inception each of the Presidents of the AAT have sat on appeals from decisions made by the AAT while judges of this Court holding that additional commission.
99 I accept the Respondent’s submission that the Applicant’s asserted apprehension falls significantly short of what is required by the two stage test set out in Ebner.
Actual bias: Acting on instructions
100 The Applicant has also submitted that I should recuse myself for “actual bias”.
101 When I declined to promise to give an ex-tempore decision on 30 March 2017 the Applicant stated:
… it’s beginning to sound like you are acting…instructions - as you do with the president of the…under the instructions of the Minister. And this is one of the big problems I have.
I would like to make my case against you for your recusal and against the respondent, who of course are the government who you also are responsible to…
102 The rationale for the Applicant’s apprehension that I might act on the instructions of the Attorney General appears in her written submissions expressed as a supposed constitutional issue, viz:
Whether his Honour, if, when applying the test for apprehended bias…refused to disqualify himself, he would have misconstrued his role as President of the AAT, that being one in which he reports and is answerable to the executive (the Commonwealth Attorney-General) in accordance with section 24R of the Administrative Appeals Tribunal Act 1975 (Cth).
103 The Applicant asserts a logical connection between her fear of my deviating from deciding her appeal on its merits, by reason of my also holding office as President of the AAT, and those statutory reporting obligations. The obligations are submitted to involve a breach of the separation of powers and to establish a case of my actual bias.
104 Because my term as President has expired that submission must be rejected.
105 Moreover, as a matter of law the Applicant’s contention was fundamentally misconceived.
106 Section 24R of the AAT Act, ‘Annual report’, provides that “[a]s soon as practicable after 30 June in each year, the President must prepare a report of the management of the administrative affairs, including the operation of the Divisions, of the Tribunal during the year”. The report is to be given to the Minister (the Attorney General) no later than 15 October and the Minister “must cause a copy of the report to be tabled in each House of the Parliament.”
107 That section does not empower the Attorney General to direct the President or its members in any regard.
108 The section merely provides a mechanism for public accountability through the presentation of an annual report to the Parliament in respect of the President’s management of the administrative affairs of the AAT Act.
109 In that regard the President of the AAT is in no different position than a judge responsible for the administrative affairs of a Ch III court. For example, the Federal Court of Australia Act 1976, s 18S ‘Annual report’, requires the Chief Justice, “[a]s soon as practicable after 30 June in each year…must prepare a report of the management of the administrative affairs of the Court during the year.” That report must similarly be given to the Attorney General by 15 October for tabling in each House of the Parliament.
110 The judges of the High Court (who collectively administer that Court) also have an obligation to provide an annual report to the Parliament relating to the administration of the affairs of that Court (High Court of Australia Act 1979 s 47, ‘Annual reports and financial statements’).
111 It is a fundamental misunderstanding to suppose that such provisions involve a breach of the separation of powers or that they establish a case of actual bias by reason of capacity in the Attorney to direct the conduct of a judge.
112 The nature of that misunderstanding is so self-evident that I am satisfied that a fair minded lay observer would not even entertain the notion that that might be a reason to apprehend bias on my part.
113 To the extent the Applicant contends that this involves an issue arising under the Constitution that submission is unsupportable. In Finlayson Toohey J said of a similarly misconceived submission (at 74):
In terms of 78B, a cause does not “involve” a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the challenge does involve a matter arising under the Constitution. The applicant’s argument is based on a misunderstanding of the structure of the Family Court. It involves no more than a consideration of the division of functions that is a feature of any court.
Respondent’s submissions regarding sequestration
114 The Respondent submits that as a result of a sequestration order made by the Federal Circuit Court on 4 April 2017 the appeal to be determined by the Full Court is stayed by force of s 60(2) of the Bankruptcy Act 1966. Whilst so stayed the Applicant is unable to take any step in the appeal including moving on the application for my recusal.
115 However, the Full Court will have to determine the correctness or otherwise of that proposition. Accordingly it is my duty to determine this recusal application, even if ultimately it is only for that limited purpose.
Conclusion
116 For the above reasons I have concluded that a fair minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of the Applicant’s appeal. I decline to recuse myself. The application must be dismissed.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr. |
Associate:
Dated: 18 May 2017
