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.
Very interesting. Especially given Gageler J’s earlier advice to the ACT on the validity of same-sex relationship legislation was used to justify the validity of the ACT Marriage Equality Act which is before the Court in December.
True, but in contrast to Unions NSW, his advice to the ACT government has always been public: both the fact that it was made and its content.
What both cases highlight one downside of appointing a significant constitutional lawyer directly to the High Court.
It will be interesting to see if anything similar occurs in relation to the same-sex marriage case, given that Gageler J provided advice on a predecessor to the ACT’s Marriage Equality Act, the Civil Partnerships Bill.
I am surprised that Justice Gageler only stood down after the matter was made public. Isn’t the usual thing with any “reasonable person” that “reasonableness” is judged by such a hypothetical person being apprised of all relevant facts, and not merely what she can find out from public sources?!
As near as I can understand it, Gageler J’s view was that, the public knew all the facts, there wouldn’t be a reasonable apprehension of bias (presumably because the advice only ‘touched on’ the issues the High Court had to decide.) The problem that actually led him to recuse himself was a different one, where the public only knew some of the facts. A little knowledge is a dangerous thing…
This of course is not the first time a former Solicitor-General or Cth legal adviser has been appointed to the High Court. Has the question not come up previously? It must clearly be the case that simply advising the Cth on a matter previously, should not of itself cause a member of the Court not to hear some later case involving that point of law. Otherwise Justices in the position of Justice Gageler would hardly be able to sit on any Constitutional cases! Of course it will depend on the precise nature of the previous advice and its connection with the current issues. As Jeremy noted, here it was stressed that the fact of the content of the advice not being available now made a difference. In the case of the Same Sex Marriage legislation the fact of and the content of the advice are public, so presumably that will not of itself mean that his Honour has to recuse himself.
Callinan J, although not SG, faced a similar issue in Kartinyeri. He initially decided to sit (and delivered a judgment explaining why: see Kartinyeri v The Commonwealth  HCA 52). However, ultimately he did not sit (I think after further evidence about his role in the matter emerged).
Thanks. For the readers, here’s Callinan’s judgment: http://www.austlii.edu.au/au/cases/cth/HCA/1998/52.html
And here’s a transcript of a 4 corners episode that includes coverage of his subsequent recusal: http://www.abc.net.au/4corners/stories/s18184.htm
According to 4 corners, the new information was that the advice was given to the Minister, rather than to a Senate committee as the judgment indicated.
There are no doubt lots of points of difference between this case and Gageler J’s role in the marriage case. One is that Callinan’s advice was given only months before his appointment.
And here is some US practice: http://www.scotusblog.com/2012/10/scotus-for-law-students-sponsored-by-bloomberg-law-justice-kagans-recusals/. The point of contrast is that US constitutional cases slowly work their way through the court hierarchy, so Solicitors-General are routinely involved in proceedings that reach the USSC after they are appointed.
From a quick look, the only two previous Cth S-Gs appointed to the HCA are Powers and Mason, but the former is an old precedent (and controversy in the appointment) while the latter had a three-year stint on the NSWSC before he went to the HCA, significantly reducing any problem.
More recent (but narrower) precedents would be state S-Gs: Gaudron, Dawson, Wilson… And there are also former Cth A-Gs, but the issues there are different again.
We’ll find out soon enough if Gageler J recuses himself from Cth v ACT. A tactical complication for the Cth (if it is minded to challenge any non-recusal) is that Gageler J’s published advice is supportive of the ACT marriage equality law but against a state one.