Disqualification of Judges and Pre-Judicial Advice

(2015) 43 Federal Law Review 201

UNSW Law Research Paper No. 2016-76

32 Pages Posted: 18 Apr 2016 Last revised: 9 Jul 2018

See all articles by Gabrielle J. Appleby

Gabrielle J. Appleby

University of New South Wales (UNSW)

Stephen McDonald

Hanson Chambers; University of Adelaide - School of Law

Date Written: 2015

Abstract

This article explores the circumstances in which a judicial officer may be required to recuse himself or herself on the basis of an opinion provided in the course of practice as a legal practitioner, prior to appointment to judicial officer, particularly where that opinion was on a matter of law only (including the constitutional validity of legislation). We suggest that questions concerning disqualification of judicial officers in such circumstances might be better approached by considering broader concepts of fairness, in addition to asking whether the provision of the pre-judicial opinion gives rise to considerations of apprehended bias. We also explore possible developments of the law to avoid the undesirable situation where the disqualification of a particular judicial officer may depend upon whether one party to the litigation chooses to disclose the existence or the content of advice that it has received.

Keywords: recusal, disqualification, prejudicial advice, prejudgment

Suggested Citation

Appleby, Gabrielle J. and McDonald, Stephen, Disqualification of Judges and Pre-Judicial Advice (2015). (2015) 43 Federal Law Review 201; UNSW Law Research Paper No. 2016-76. Available at SSRN: https://ssrn.com/abstract=2765694

Gabrielle J. Appleby (Contact Author)

University of New South Wales (UNSW) ( email )

Kensington
High St
Sydney, NSW 2052
Australia

HOME PAGE: http://www.law.unsw.edu.au/profile/gabrielle-appleby

Stephen McDonald

Hanson Chambers ( email )

56 Carrington Street
Adelaide, South Australia 5000
Australia
61 8 8212 6022 (Phone)
61 8 8231 3640 (Fax)

University of Adelaide - School of Law ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
32
Abstract Views
182
PlumX Metrics