Disqualification of Judges and Pre-Judicial Advice
(2015) 43 Federal Law Review 201
32 Pages Posted: 18 Apr 2016 Last revised: 7 May 2020
Date Written: 2015
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
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