This Wednesday, the High Court held an all-day hearing on the closely watched dispute between the NSW Independent Commission Against Corruption and prosecutor Margaret Cunneen over the legality of the former’s inquiry into allegations that the latter perverted the course of justice in a traffic matter involving her son’s girlfriend. Reports during the day emphasised criticisms from the bench of ICAC’s barrister, but of more interest is an early morning report in the Sydney Morning Herald early that focused on the composition of the bench itself:
When the High Court convenes to hear the hotly anticipated legal battle between the NSW corruption watchdog and Crown prosecutor Margaret Cunneen on Wednesday, one judge will not be on the bench. Fairfax Media understands Justice Virginia Bell will not be part of the five-judge bench hearing the Independent Commission Against Corruption’s challenge to a ruling shutting down its inquiry into the silk because she has previously made a ruling unfavourable to Ms Cunneen.
The transcript for Wednesday’s all-day hearing shows that the five-judge bench consisted of French CJ , Hayne J, Kiefel J, Gageler J and Nettle J. Justice Hayne’s presence is something of a surprise, given that he must retire in three months (in apparent contrast to Crennan J, who heard her last full bench matter over three-and-a-half months before her retirement.) On the other hand, Bell J’s absence from the bench was seemingly no surprise, a fact that raises two interesting issues about the High Court itself.
The first is that it is often unclear why a particular judge is or isn’t on a High Court bench. The Supreme Court of Canada has a clear practice of announcing on its website if a judge has recused him or herself (and, indeed, any other correspondence to the parties), e.g. here. By contrast, except when a judge announces their own recusal from the bench, the High Court makes no public announcements about such decisions (and does not typically disclose its correspondence to the parties, e.g. a letter to the parties the Court sent last Friday, referenced in Wednesday’s transcript.) As the Herald noted:
A spokesman for the High Court said on Tuesday that he was unaware of any judge stepping aside from the case and “the makeup of the bench is not public knowledge until the day of the hearing”.
So, it is unclear whether Bell J did recuse herself (and, if so, whether it was due to her involvement in an earlier decision involving Cunneen) or whether her absence (and, for that matter, Keane J’s) is just the result of the Court’s undisclosed (and presumably random) process for determining the composition of five-judge benches. And it is also unclear whether (and, if so, how) the Herald’s (inexplicably) anonymous source came to know information of possible interest to the public that had not been disclosed to the public.
A further, smaller issue is that it is also not always clear why the High Court opts for a five-judge bench rather than a bench made up of all the available judges. According to the Herald’s unnamed High Court ‘spokesman’:
most cases were heard by five judges and the full complement of seven judges generally only heard cases involving Constitutional issues, or cases where the court was being asked to overturn an earlier decision.
While that’s certainly accurate, it is also true that the Court does occassionally form seven-judge (or, if one judge is unavailable, six-judge) benches for other important cases. Current examples include pending decisions on bankruptcy procedure and native title, each heard by six-judge benches (absent Crennan J, presumably due to her then pending retirement) even though neither seems to involve live constitutional issues or potential overrulings. Given claims that the Cunneen case has significant implications for many other ICAC matters, it was certainly possible that it would have attracted a seven-judge bench. So, it is now somewhat unclear whether the decision to form a five-judge bench in the case was simply routine, or was partly influenced by the fact that Bell J’s recusal (if it occurred) would have forced the formation of an unsatisfactory six-judge bench.