Kartinyeri & Anor v Commonwealth of Australia

[1998] HCATrans 15

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A29 of 1997

B e t w e e n -

DOREEN KARTINYERI and NEVILLE GOLLAN

Plaintiffs

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

For Mention

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 FEBRUARY 1998, AT 4.46 PM

Copyright in the High Court of Australia

MR J.J. SPIGELMAN, QC:   If your Honour pleases, MR S.W. TILMOUTH, QC and I appear for the plaintiffs. (instructed by Camatta Lempens Pty Ltd)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:   Your Honour, I appear for the Commonwealth.  (instructed by the Australian Government Solicitor)

MR SPIGELMAN:   Your Honour, we have asked for this matter to be listed before your Honour for the purpose of making an application that your Honour disqualify yourself from sitting in the main proceedings which are set down for hearing in the Court tomorrow.  The basis of the application, as your Honour is aware, is that there would be a reasonable apprehension of bias in accordance with the well‑known test that is well accepted in this Court that one needs only to establish that a reasonable objective observer could think that your Honour might not deal with the case before the Court in a completely impartial manner.  The test is, as has often been expressed, perhaps a harsh one.  It is not a ‑ ‑ ‑

HIS HONOUR:   Well, a possibility.

MR SPIGELMAN:   A mere possibility is enough.  We wish to put before your Honour two alternative bases for this.  Shortly put, one is based on prejudgment - and your Honour is aware of that line of authority.  The other is based on association.  Until this morning we were basing this application solely on an opinion that had come into the public arena by reason originally of its publication by a parliamentary committee.  However, this morning your Honour indicated to myself and my learned friend that your Honour had had another association with aspects of this matter, if I could use that general description.

HIS HONOUR:   Yes, but perhaps I should say publicly what I think you have been told.

MR SPIGELMAN:   If your Honour pleases.

HIS HONOUR:   Which is that I was asked, I think by Mr McLachlan, who is now a Minister of the Crown, but who was then in Opposition, to draw up some terms of reference for a possible inquiry to be appointed, I think, by the Executive of the South Australian Government into aspects - and I put it very broadly - of the Hindmarsh Bridge affair.  I do not think anything - and this may not be relevant - but I do not think anything was ever done.  I do not think those terms of reference ever became an Order in Council, or, indeed, anything like them.  Have you been able to check that?

MR SPIGELMAN:   Yes, your Honour.  We have compared your Honour’s draft of the terms of reference with what became the terms of reference of a Royal Commission, and it does not appear that your Honour’s draft was used as a draft, and that the terms of reference are distinctively different.  The document that your Honour handed us this morning is dated 25 May 1995, and I presume that is what your Honour was ‑ ‑ ‑

HIS HONOUR:   Look, I am uncertain of the dates, Mr Spigelman, because I had my records searched, but they are in some disarray because I have moved out of my chambers.  My best recollection is that there were no other documents.  I was asked orally to do that, and I did it, and I am fairly certain that it was accompanied by no other document.  It was sent to Mr McLachlan’s office.

MR SPIGELMAN:   Is your Honour informing me that it was sent directly to Mr McLachlan, not through an instructing solicitor?

HIS HONOUR:   No, I think it went directly to Mr McLachlan, yes.

MR SPIGELMAN:   And it is apparent, from the terms of reference that your Honour drafted, that there were at least some form of instructions as to the nature of the issues that had arisen.

HIS HONOUR:   Yes.

MR SPIGELMAN:   Whether your Honour received them orally or in writing.

HIS HONOUR:   No, I received them orally and, as I recollect, they were extremely brief.  As you would remember, there was a great deal of publicity about this matter and, as I understood it, the principal issue was whether the Aboriginal ladies in question had held requisite beliefs and their residential or other domiciliary, if you like, basis for doing so, and I rather think that I got most of that from just a general knowledge of what was happening.  I am virtually certain - I cannot give you an absolute assurance, but I am virtually certain there were no other documents.

MR SPIGELMAN:   May I indicate the application we would make, as it were, in the alternative, the application we had foreshadowed previously.

HIS HONOUR:   Yes.

MR SPIGELMAN:   That is that this on its own is a sufficient ground for giving rise to the reasonable apprehension which is not just in the public, of course, but also amongst the parties.  The reason for that is, your Honour, that this step that your Honour was associated with in a limited way with Mr McLachlan personally is a very significant step in the sense that the Royal Commission that was eventually held at the instigation of a number of persons, of whom Mr McLachlan at the time was one, was a very significant event in the history of my clients’ interest leading to the passage of the Bill which is before the Court.

Mr McLachlan is, I am instructed, regarded by my clients, and reasonably so regarded, as perhaps the central or at least one of the central figures in a political campaign directed at their credibility of which the Royal Commission and its terms of reference was a central part.  Could I hand to your Honour for your Honour to read and consider perhaps the beginnings of the chronology in this respect?  It is an extract from a Hansard of 9 November 1994.  I have provided a copy to my learned friend.  The issue before the Parliament was a motion seeking that the declaration by the Minister made under the Heritage Act be disallowed.

Now, that declaration was in due course set aside by order of the Federal Court for administrative law type reasons, denial of natural justice and the like, and had not happened at this stage.  Mr McLachlan’s speech on behalf of the Government - Mr McLachlan is, of course, as your Honour would be aware, the local member for the area, which includes Hindmarsh Island.

HIS HONOUR:   Yes, I knew that.

MR SPIGELMAN:   He was not at that stage the Shadow Minister for Aboriginal Affairs, but no doubt that explained why it was he who moved the motion on behalf of the Opposition.

I invite your Honour’s attention to the speech.  The speech is, in a large measure  ‑ ‑ ‑

HIS HONOUR:   Could I just pause there.  I am a little bit concerned about the Parliamentary Privileges Act when you start referring to speeches because I think, is it section 16(3).  I have not had to look at this for a while but once you start talking about it, I suspect you may be questioning it.

MR SPIGELMAN:   I am not questioning it, your Honour.

HIS HONOUR:   I know that there has been a very, very expansive change to the Bill of Rights provision.  Do you know what I am talking about?

MR SPIGELMAN:   Yes, your Honour.

HIS HONOUR:   The actual issue as to the extent to which one can even comment upon a speech in Parliament  ‑ ‑ ‑

MR SPIGELMAN:   We would not be inviting your Honour to do so.

HIS HONOUR:   No, but whether even you can do it.

MR SPIGELMAN:   I am sorry.

HIS HONOUR:   Perhaps somebody - can you assist me on that, Mr Griffith?

MR GRIFFITH:   Your Honour, this is a matter under continuous judicial examination, the matter of Katter is  ‑ ‑ ‑

HIS HONOUR:   I should say I was in Katter and that is why I am aware of the point.

MR GRIFFITH:   Your Honour will not be sitting on that when it comes on.

HIS HONOUR:   I certainly will not be sitting on Katter because I acted against Mr Katter, or Senator Katter, is it?  I acted against him in Queensland where Mr Katter lost but there is a grant of special leave.

MR GRIFFITH:   Yes.  But the basic provision, your Honour, was enacted with the intention of restoring what was understood to be the position under the Bill of Rights up to the decision of Justice Hunt’s  ‑ ‑ ‑

HIS HONOUR:   Yes.

MR GRIFFITH:    ‑ ‑ ‑ but the question of whether it has overreached that or not would seem to rise up in Katter.

HIS HONOUR:   And, of course, the decision of Mr Justice Hunt has been very heavily criticised in academic and other papers.

MR GRIFFITH:   Yes.  It does not matter now, your Honour, because it has effectively been overruled by the new provision.

HIS HONOUR:   Right, as being far too narrow of construction of the Bill of Rights.

MR GRIFFITH:   Yes, but, your Honour, when one goes beyond that and says, “Well what would be the position about reading Hansard here?”, well, your Honour, we are both going hammer and tongs tomorrow on the substantive issues using Hansard without inhibition on the Acts Interpretation Act provision which - there is some issue on whether you can rely on that constitutional case, your Honour.

HIS HONOUR:   I just know Mr Evans who as the Clerk of the Senate has written some very trenchant views about this matter.

MR GRIFFITH:   I keep on saying, your Honour, he is not a lawyer.

HIS HONOUR:   No, you are not the only one to say it.  Look, I do not want to obstruct the argument.  I am just a little bit concerned about this, Mr Spigelman.

MR SPIGELMAN:   Your Honour, if we had the time we would get the newspaper reports of the next day, which would unquestionably - your Honour could refer to.  Perhaps we could do that overnight or something like that, if your Honour has any difficulty.  Could I also hand to your Honour a report of the Royal Commission, which also refers at various ‑ ‑ ‑

HIS HONOUR:   Is it not sufficient for your purposes that Mr McLachlan has been an advocate of the construction of the bridge, both inside and outside Parliament, and I would think that Mr Griffith would not - - -

MR SPIGELMAN:   Yes, that is what the Royal Commission shows, that outside Parliament he had detailed, over a long period of time, contact with various people and made submissions of various kinds.

HIS HONOUR:   Without reference to Hansard I am prepared to accept the position that Mr McLachlan has been a trenchant critic of any plans to obstruct the construction of the bridge.

MR SPIGELMAN:   Not only that, your Honour, he has also been the source of a campaign to denigrate the first-named plaintiff, because she is the person on whose word the secret women’s business issue was first propounded.  She was the person, for example, whose evidence was in the envelopes that were, as your Honour may recall, misdelivered to Mr McLachlan leading to a series of events shortly before May - in March 1995, shortly before your Honour was asked for this draft, which led to Mr McLachlan resigning from the front bench of the Opposition at that time.

HIS HONOUR:   I think it is also a matter of public record, Mr Spigelman, that I acted for Mr McLachlan and gave him advice.  It is a matter of public record.  It is not privileged, that all of those envelopes and documents should be sent to the person to whom they were actually addressed.

MR SPIGELMAN:   I must say, your Honour recollects that.  I did not know that your Honour had that particular association.  But if indicates a degree of involvement which with a person, may I say because of the absence of the invention of a solicitor, a more direct involvement that may usually be the case for a barrister.

HIS HONOUR:   That is true and I should also say, I suppose, I have known Mr McLachlan for many many years.  My first acquaintance with him was when I acted in the Mudginberri Farmers Case and he was, I think, the President of the National Farmers’ Federation, so he was effectively my client on that occasion.  He has been a personal friend of mine.

MR SPIGELMAN:   Your Honour, the extent and depth of the relationship, as your Honour indicates, we would submit, adds force to our submission, that our reasonable independent observer would come to the view that by reason of this association, your Honour may have a degree of prejudice, and I use that word in the possibility sense, particularly against the first‑named plaintiff in this case.  And that, your Honour, if it was simply a personal association of some - your Honour may feel obliged to have disclosed it, but that may not have been enough.  But because it is an association which has involved activity directly related to the course of political events that led to the legislation that is before the Court, because it is an association that was involved in those matters, that a reasonable observer could have the relevant apprehension and these, as you know, are matters not covered in our earlier submissions.

HIS HONOUR:   As you know, I thought - I remembered the matter at the terms of reference and I thought you should be armed with that and that is why I provided it to you this morning.

MR SPIGELMAN:   If your Honour pleases.Could I just then briefly speak to the other matter, which is the expression of the opinion.  May I say that there were two elements of that.  One was the pre-judgment element and the other matter was also the matter of the origins of the instructions.  Namely, it was a Minister for the Crown and indeed a relevant Minister for the Commonwealth who, as we understand the position, requested that you provide an opinion and that that opinion was, in due course, provided in the form of a submission to the committee.

HIS HONOUR:   Perhaps I should just make clear:  I was asked whether I was prepared to consider the matter and if I were, whether I was prepared to make a submission.  I want to make clear I was not invited to form any particular view and I said at the time that I was unacquainted with the legislation and the view might or might not be a view that would find favour.  I mean, again there were no written instructions.

MR SPIGELMAN:   Well, your Honour, in terms of what I may call the “association issue”, as distinct from the “pre-judgment question”, namely the “pre-judgment question” turns on the contents of the opinion, the “association issue” turns on the respects in which your Honour has had an involvement in what I might loosely call the “political history” of the matter with Mr McLachlan.  That continues, your Honour, as an element of association with the person who became the Minister for Aboriginal Affairs and is the relevant manifestation of the defendant, namely, the person who has the administration of the Heritage Act, for example, in the government.  He is the person who requested your Honour to provide this opinion.  It is another element of an association with what would be seen by a reasonable observer to be the other side of the debate for which I appear and we submit that those on their own, irrespective of the contents of the opinion, are sufficient to satisfy the relevant test.

With respect to the contents of the opinion, my friend and I have provided your Honour with the outline.  Our view is modified to some extent because my friend drew attention to a restriction in the questions in his submission which we did not fully acknowledge in our written submissions.  Nevertheless, we would submit that there is an element that could satisfy the test with respect to prejudgment in the two sentences to which we directed attention, namely, the sentence that your Honour and your Honour’s junior said:

We make it clear at the outset that the Commonwealth Government has plenary power to introduce racially discriminatory legislation if it so wishes.

That is directly in issue in the case before the Court in the next two days in terms.  Your Honour expressed that opinion in the context of advising on the Bill as an Act has become the very Act, the validity of which is in issue in the case.  It is that much stronger as an element of prejudgment than it would have been if your Honour had said that in some other context.  It may be that your Honour was not specifically asked to conclude is the Act valid, but your Honour did express the view as to one of the principal bases on which the validity of the Act is challenged.  Of course, we rely, as we indicated to your Honour, on the identity of the party who requested that your Honour provide the opinion, being the relevant representative of the defendant.

The second sentence was in the context of retrospectivity.  It is true that retrospectivity is not an issue before the Court.  Nevertheless, whilst acknowledging that context, your Honour said - even your Honour’s sentence is open to a reasonable construction that your Honour was saying the Act is otherwise valid, irrespective of the retrospectivity but also on other grounds.  It is in that respect that my friend’s submissions leave me only to qualify to some extent what we put in writing to your Honour, but we nevertheless say that a reasonable fair‑minded observer could reasonably form the view as to the possibility, not the fact that your Honour is likely to be biased - as your Honour knows, that is not the test - but that your Honour might be.

In that respect, the position is based on elementary human nature, that once one expresses an opinion on a subject, it is just that much more difficult to talk one out of it.

HIS HONOUR:   Mr Spigelman, do you not, however, rely upon some very clear expressions of opinion by his Honour Justice Brennan, as he then was, in the Franklin Dam Case, and her Honour Justice Gaudron in some more recent cases?

MR SPIGELMAN:   Your Honour, that was done in a context of litigation, but not as an expression of an opinion, but as a step in some reasoning not in the context of this Bill.  I mean, the crucial - there are two distinctions; one being at the private bar and expressing it in accordance with a judicial duty.  But the most important thing is that it was in a context relevantly to the legislation in that case.  The context here is the very Act before the Court, and that is the distinction.  As I said earlier, I think, if your Honour had expressed it in some other context, the point would have less force.

HIS HONOUR:   Mr Spigelman, let me tell you I have no firm view upon this matter at all.  I do have a little difficulty with the proposition that the prior expression of a view is a basis for disqualification.  Now, that says nothing about your other point of personal association.  There would be many occasions, perhaps on many issues, upon which a barrister who subsequently comes to the Bench would have given opinions over the years, and I would not have thought myself, tentatively anyway, that that would disqualify that person on coming to judicial office.

MR SPIGELMAN:   Each of these cases turns on the full range of its circumstances and that is acknowledged in the authorities, including the ones that my friend quotes at length in his submissions.

HIS HONOUR:   And by the same token, if a Judge has expressed a view, as I think the view of his Honour Justice Brennan in the Franklin Dam Case, quite clearly in your favour if it is adhered to after argument here.

MR SPIGELMAN:   It is not in the sense that the word “primarily” appears there and the word ‑ ‑ ‑

HIS HONOUR:   I noticed you sort of expanded upon that a bit later.

MR SPIGELMAN:   No, in his submissions his Honour - I have indicated how the distinction is made, namely, that was not in the context of the very Act before the Court.

HIS HONOUR:   Let me tell you it is the personal aspect of the matter that troubles me most.

MR SPIGELMAN:   The aspect of the opinion is an element in the circumstances of that matter, not only the contents of it, but the circumstances in which it was requested and the party who requested it and the fact that the opinion was yet another - it was requested as an opinion but for purposes of being made as a submission in the continuing political history of the matter.  Now, I am moving away now from the prejudgment issue simpliciter.

HIS HONOUR:   No, I understand your submission.

MR SPIGELMAN:   These matters must be determined obviously from the point of view of the public interest and the administration of justice, but it is all the relevant circumstances that come into play and whilst - we mentioned in Weber - we gave your Honour the references in our submissions - the fact that it is frequently the case that questions of association and prejudgment overlap - we gave your Honour the reference  ‑ ‑ ‑

HIS HONOUR:   Yes.  I would not ‑ ‑ ‑

MR SPIGELMAN:   They do frequently overlap and that is what they have done in this case.  Although I have addressed your Honour as if they were separate issues, in truth your Honour should not regard them as such.

It is really whether or not the accumulative effect of all of the matters, namely your Honour’s association with Mr McLachlan at the time of giving him personal advice at the time of his resignation from the front bench, your Honour’s association giving him a draft of a royal commission terms of reference, and subsequently your Honour’s association with the Minister for Aboriginal Affairs, at his request, providing an opinion and then the contents of the opinion.  It really is that all of these elements added together allow a reasonable, fair-minded observer, in particular in this case, “the party”, namely the first named plaintiff to have the relevant apprehension.  If your Honour pleases.

HIS HONOUR:   Before you sit down there are a couple of other matters I want to put to you.  This is undoubtedly an important case.  Nobody would dispute that.  It is no secret that this Court in other cases has been divided three-all on various matters.

MR SPIGELMAN:   On Monday.

HIS HONOUR:   Exactly, as recently as Monday.  I am not suggesting that that would be the outcome here but it is obviously a highly undesirable result and it is sometimes an invitation for matters to come back before the Court later.  Does the fact that this is the final Court of Appeal, that it is a constitutional matter, that, in effect, there is a constitutional obligation of a Judge to sit on a constitutional matter, and the public inconvenience and uncertainty of a possible three-all outcome, do those factors have any relevance here?

MR SPIGELMAN:   They are relevant factors in making your Honour’s mind up.  We do not say they are not relevant.  My friend has given your Honour some submissions in this respect in paragraphs 4 to 7, and he ends up saying that, by reason of the factors of the character your Honour has just mentioned:

judges of the High Court ought not to accede to requests they be disqualified unless a real possibility of apparent bias exists -

and we accept that as a test.  By reason of the matters - it is all in the word “real” possibility in his submission and it may be that it is not possible to be more precise than that.  We accept that, but for the reasons your Honour has mentioned, my friend’s test is the appropriate one.

HIS HONOUR:   I suppose it should be made clear for the benefit of Mr Griffith that he does not take a position urging me in any way to sit.  His client properly takes the position of not being a contradictor but drawing attention to assist the Court to relevant consideration.

MR SPIGELMAN:   If your Honour pleases, they are our submissions.

HIS HONOUR:   Thank you, Mr Spigelman.

MR GRIFFITH:   Your Honour really enunciated my submissions, your Honour.  My learned friend has widened his brief in a way by referring to issues which he says goes to credibility or depth of association.  We would see, your Honour, that still falling within the ambit of the same approach which we indicate in those paragraphs.  My learned friend referred to it being entirely a matter for your Honour, and bearing in mind, of course, what Sir Anthony Mason said in the Re JRL Case, which we - - -

HIS HONOUR:   I just do not know.  I mean, we have had people come to this Court, Sir John Latham, who came directly from politics, who would have had the closest possible association with members of the Government and who no doubt decided constitutional cases. 

MR GRIFFITH:   There has been more than one Solicitor-General on the Court, too, your Honour.

HIS HONOUR:   Exactly, and his Honour Justice Murphy, of course, came straight from the Federal Cabinet to this Court.  Again, there were constitutional and other cases to be decided.  You could not get - nobody would suggest, I would expect, that my association with the two gentlemen mentioned would be nearly as close as the association arising from Cabinet solidarity and camaraderie.

MR GRIFFITH:   Yes.  Your Honour, the last sentence of Sir Anthony Mason’s judgment that we refer to in paragraph 6 of our submissions deal with the robust nature of the self‑assessment that your Honour must engage and the points we make in paragraph 7 which we refer to that these principles all the more strongly apply in constitutional matters in this Court.

HIS HONOUR:   It goes further, does it not?  I mean, there is a member of this Court who is the husband of a lady who was a member of Federal Cabinet until she retired from politics.  One could not get a closer association than that.  I do not know what the answer is.  I did not put these matters to Mr Spigelman and I will in a moment.

MR GRIFFITH:   Yes.

HIS HONOUR:   I am searching for assistance here.  I really do not know what is the appropriate course.

MR GRIFFITH:   Your Honour, Sir Anthony Mason has assisted by indicating that there is a duty to sit  ‑ ‑ ‑

HIS HONOUR:   Yes.

MR GRIFFITH:    ‑ ‑ ‑as a starting point and the statements are, your Honour, that one should not too readily accede to a request unless one shows that there is a reasonable apprehension of bias which must be firmly established and there is this consideration that the constitutional level in this Court where the duty to sit does have a certain primacy.

HIS HONOUR:   The idea of walking away from the case and the controversy that it might possibly attract, no matter what the outcome, is rather attractive.

MR GRIFFITH:   Yes, well as your Honour has indicated, the Commonwealth can only go so far in referring to the relevant principle.

HIS HONOUR:   Yes, I understand that.

MR GRIFFITH:   It is for your Honour to assess whether there is real possibility in which my friend agrees as being the appropriate test, particularly in this Court, does exist.

HIS HONOUR:   Yes.

MR GRIFFITH:   So that, your Honour, taking the agnostic position that our submissions indicate, unless your Honour seeks to interrogate me on principle - - -

HIS HONOUR:   I think the principles are clear.  I do not doubt the way Mr Spigelman has put them.

MR GRIFFITH:   Yes.  He has modified his ones, your Honour, to accept our submissions, and we are happy with that.

HIS HONOUR:   Well, quite.  But the authorities he has cited are - I mean, when he puts possibility is sufficient, that is the principle, as I understand it.  Although, there has been a controversy about that for many years, but I think it has been clearly settled in Australia since Watson’s Case at least.  I think in England it was slightly different for a while.

MR GRIFFITH:  Your Honour, it must be said that, at the level of this Court, there must be a certain robustness.  Perhaps to give a theoretical example, your Honour, were the legislation being enacted with respect to superannuation levies on judicial pensions attacked in this Court, there is no doubt whatsoever, your Honour, that all the Court would be obliged to sit.

HIS HONOUR:   I do not know about that, Mr Griffith.

MR GRIFFITH:   Well, your Honour, assuming that were the case - - -

HIS HONOUR:   Because I am the first judge who will be caught by the new provisions.

MR GRIFFITH:   Well, perhaps all except you, your Honour, but, yes.

HIS HONOUR:   There is another aspect, again, that I will put to Mr Spigelman.  There was no factual component, in my opinion, in the sense that I looked only at legislation.  Is there any factual issue at all in the matter that is to come before the Court tomorrow?

MR GRIFFITH:   None at all, your Honour.  No credibility issue either.

HIS HONOUR:   There is no issue of credibility and there is, of course, no issue of credibility in my opinion.  And, as I think your submissions point out - or, your submissions refer to a case, I think it might be, or a statement by Sir Anthony Mason, that the position may be different if advice has been given to implement an opinion, if there has been some involvement in anything like that, and that did not occur in my case here.

MR GRIFFITH:   We do refer, your Honour, in our submission to the question as to what issue apparently your Honour’s advice is directed.

HIS HONOUR:   Principally it was not directed to the issue here but I do not doubt that what Mr Spigelman has put is really correct.  It is probably a gratuitous opinion, Mr Spigelman, but I think I expressed clearly enough an opinion on one of the issues here.

MR GRIFFITH:   Well, your Honour, it is not a one-liner, it is a two-liner.

HIS HONOUR:   It was done very quickly under some pressure, as I remember, and that is why a junior was asked to collaborate with me in the opinion.

MR GRIFFITH:   Perhaps that just brings us back to your Honour.

HIS HONOUR:   Yes, I think so.  Mr Spigelman, I do not want to inhibit you but could you deal with the matters I have put?

MR SPIGELMAN:   Yes.

HIS HONOUR:   I should have put them to you, I am sorry, but you have an opportunity to deal with them now.

MR SPIGELMAN:   Your Honour, of course members of the Court have all kinds of associations from time to time, personal associations and others, and what one has to do in all these matters is to make a judgment as to what the fair‑minded observer will infer or can infer from the entirety of the association.  Now, to say that the crucial factor in this case, which is distinguished from your Honours abstract examples of former politicians, Chief Justice Latham or Justice Murphy, is that one is dealing with associations which include associations about the substratum of the events that have led to this case being before the Court.

HIS HONOUR:   Would not that have happened inevitably in the case of the politicians I have mentioned?  I mean, it may not be possible to identify ‑ ‑ ‑

MR SPIGELMAN:   It did and on some occasions they did not sit.

HIS HONOUR:   Yes.

MR SPIGELMAN:   Now, in the Petroleum and Minerals Authority Case, which was one of the first cases before the Court after Justice Murphy’s appointment - this was one of the elements in the double dissolution - Justice Murphy did not sit on that case because he did, in fact, take a public position. I mean, there may have been other reasons, but according to the note in the ALJ, which we have given your Honour a reference 49 ALJ 110, the reason appears to be that he took a position as to the validity of the legislation by putting it forward for the purposes of the double dissolution of 1974 and that he did so as the Attorney‑General of the time and that that was regarded, as it were, as sufficient prejudgment and he did not sit on that case.

Now, he had, therefore, an association of a particular character going to one of the issues before the Court.  Subsequently there have been other occasions.  Justice Dawson did not sit on his first constitutional case, which was Hematite.

HIS HONOUR:   Yes, but he had been involved in, in effect ‑ ‑ ‑

MR SPIGELMAN:   As the Solicitor‑General.

HIS HONOUR:   ‑ ‑ ‑ implementing - implementing is putting it too high, but a much more intimate involvement as Solicitor‑General.

MR SPIGELMAN:   Yes, I am sure he would have had.  Similarly, most recently Justice Hayne in his first case, which was Western Mining v The Commonwealth, did not sit.

HIS HONOUR:   But he sat on that down in a court below.

MR SPIGELMAN:   No, he had advised Western Mining - and I do not know at what stage and to what extent but, in fact, he had signed the statement of claim as one does in the Supreme Court of Victoria.  This was before he had become a judge of the Victorian Supreme Court.  So that is perhaps the most recent example.  No two cases are the same in terms of their facts obviously, but it is plain that irrespective of the general position that we accept in the formulation that appears in paragraph 7 of my friend’s submission, association with the very subject matter of the proceedings is a very relevant consideration.

Now, the extent, nature of that association is what is determinative of the question and obviously there are no precedents for that one.  One cannot look at one case and see what one derives from it for another purpose.

HIS HONOUR:   I think I have given you the catalogue.  It is certainly the best catalogue that I can recollect on ‑ ‑ ‑

MR SPIGELMAN:   And if your Honour pleases, it is the cumulative force of all the different elements that can create in a reasonable observer and particularly “the party”, the first named party, that apprehension on the relevant test, if your Honour pleases.

HIS HONOUR:   How much do you weigh in the fact that this is the final Court, and it is a constitutional matter, and the inconvenience of, perhaps - and I am not suggesting there will be but perhaps a split decision?

MR SPIGELMAN:   Each of the three cases I have referred your Honour to just - and there are others - the Petroleum and Minerals Authority Case, the Hematite Petroleum Case, and Western Mining v The Commonwealth raise major questions of constitutional law and, in their day, at least the first and the second were very significantly controversial in the political arena.

HIS HONOUR:   And it is six Judges only in the event - - -

MR SPIGELMAN:   It would had to have be.  I am sure that is how it was.  I think in each case, including - I had the brief for the Commonwealth in the most recent one, in each case, the decision was four:two.  So, there is no guarantee of that.  So, if your Honour pleases, they are our submissions.

HIS HONOUR:   I am going to think about this, and there is not very much time, as you know.  I find the question difficult.  I think the relevant considerations on both sides raise difficult matters.  I will try to give judgment tomorrow morning at 9.30.  I will have to do that but just to the extent to which I will be able to give you reasons at that stage, I do not know.  But, of course, I will give reasons, but you may not get them tomorrow morning no matter what I decide.

MR SPIGELMAN:   If your Honour pleases.

HIS HONOUR:   Thank you.

AT 5.25 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 5 FEBRUARY 1998