Myatt v President of the Australian Human Rights Commission

This matter came before the High Court of Australia concerning an application by Mr C.N. Myatt for the presiding Justice to recuse himself. Mr Myatt's application was based on his contention that a Justice, by taking an oath of allegiance to Her Majesty the Queen, is inherently conflicted and therefore unable to impartially adjudicate disputes between a citizen and the Executive Government. This argument was presented in the context of Mr Myatt's broader challenge to a determination made by the President of the Australian Human Rights Commission, which he alleged involved a violation of his right to an effective remedy under Article 2 of the International Covenant on Civil and Political Rights.

The central legal issue before the High Court was whether the oath of allegiance taken by a Justice of the Court creates a conflict of interest that prevents them from impartially hearing and determining a matter involving the Executive Government. Mr Myatt argued that this oath compromises a Justice's competence and ability to provide a fair hearing, particularly in cases where the Executive is a party. He further contended that this issue of competence and fairness was linked to the requirement for an effective remedy under international human rights law, suggesting that a failure to provide such a remedy could trigger recourse to international jurisdiction.

The Court considered Mr Myatt's submissions regarding the oath of allegiance and its potential impact on judicial impartiality. Mr Myatt posited that the oath, by aligning a Justice with the Crown, creates a systemic issue of apprehended bias when dealing with the Executive. He also raised concerns about prejudicial material included in an affidavit filed by the Attorney-General, arguing that he had not had a sufficient opportunity to address it, which further impacted the fairness of the proceedings. The Attorney-General, intervening as amicus curiae, submitted that Mr Myatt had not demonstrated sufficient grounds for recusal, arguing that the same reasoning applied to the apprehended bias of the Federal Court also applied to the application for the Justice's recusal.

Following the submissions, the High Court reserved its decision on the application for recusal. The Court indicated that it would determine whether to recuse itself, and if it did not, it would proceed to decide the substantive application for judicial review. The decision was to be delivered in short order.