Case: Vakauta v Kelly (1989) 87 ALR 633
Outcome: considered
In Concrete Pty Ltd v Parramatta Design and Developments Ltd [2006] HCA 55 ; (2006) 231 ALR 663 at 690, Kirby and Crennan JJ said at [111]: ... it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson [(2000) [2000] HCA 48 ; 174 ALR 655] (at [13]): [13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly , Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of " the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case ". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (Emphasis added). 224 In Vakauta v Kelly (1989) 87 ALR 633, after comments set out in the above observation, Brennan, Deane, and Gaudron JJ said at p 635: It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in her or her judgment would not represent a model to be emulated. 225 According to Direction 21: The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object, the Minister has been given a discretion to ... cancel a visa where ... the visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to ... cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to ... remain within it. (Emphases added). 226 In my opinion, the requirement of some nexus between the visa holder and the criminal conduct suspected of the person or group with whom the visa holder has an association, is reinforced by the terms of paragraph 1.5 of Direction 21.