There was a moment of relative drama at the start of Tuesday’s full court hearing of the challenge by various unions to NSW campaign financing laws. Neil Williams SC, counsel for the Commonwealth (intervening, along with several other states, in support of the NSW laws) told the Court that he needed to draw attention to information that he had just learnt: that a judge of the Court had written an advice that touched on the validity if the NSW law.
The Court adjourned ‘briefly’ to let the parties discuss the issues, but more than that appears to have happened. When the judges returned some 75 minutes later, Williams clarified that the advice in question was signed by the judge (rather than merely being written by him or her as earlier indicated) and told the Court the Commonwealth had no application to make. Justice Gageler then promptly stood down from the case.
In his brief reasons for stepping down, Gageler J revealed that he was the judge in question and that Williams’s remarks now allowed him to reveal that, when he was the Commonwealth’s Solicitor-General, a previous Attorney-General had asked him to give some advice that touched on the validity of the NSW law. Justice Gageler had previously considered whether the advice he gave required him to disqualify himself and decided that there were no grounds to do so. However, the situation had now changed because of the partial nature of today’s revelation — the parties and public now know that Gageler J had once given advice that touched on the issues in the case, but not what he actually advised. The content of the advice must remain confidential unless and until its recipient waives client-legal privilege.
Justice Gageler’s comments expressly applied the test for reasonable apprehension of bias that the High Court discussed in a 2000 case, Ebner v Official Trustee in Bankruptcy  HCA 63. In that case, the Court rejected arguments that judges should stand down merely because they held shares in a bank that was a party to or affected by the proceedings. The majority observed that:
if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
The hearing continued with a bench of the six remaining judges. In the event of a 3:3 split in the ruling, the decision of the Chief Justice will decide the case.