Courts
Judicial disqualification: Reasonable apprehension of bias
In SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 (18 March 2026), the High Court (Gageler CJ, and Gordon, Edelman, Steward, Gleeson, Jagot and Beech‑Jones JJ) unanimously dismissed an appeal from the Full Court of the Federal Court of Australia.
This appeal arose from regulatory proceedings brought by the Australian Securities and Investments Commission (ASIC) over contraventions of the National Consumer Credit Protection Act 2009 (Cth) over prohibited fees in relation to their small amount credit contracts.
Evidence was given by a Mr Powe on behalf of SunshineLoans.
After the conclusion of the liability proceedings, the appellant sought orders that the judge recuse himself from hearing the penalty proceedings.
SunshineLoans argued that there were two bases – a broader basis that there was apprehended bias as to liability against SunshineLoans and a narrower basis against further evidence that may be given by Powe.
The trial judge rejected the broader basis argument but recused himself on the narrower basis. The matter was appealed to the Full Court of the Federal Court, which rejected both grounds and remitted the matter to the trial judge for determination of penalty.
In interpretation of the test “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”, per the Full Court of the High Court of Australia’s decision in Ebner v Official Trustee in Bankruptcy, The High Court held:
“The correct application requires: ‘(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer’ (at [1]).
The High Court quoted the trial judge’s assessment of Powe, stating that “Ultimately, his evidence was not credible in the face of the objective evidence, and he was also not a witness who tried to give his evidence in an honest manner” (at [26]).
ASIC appealed to the Full Court of the Federal Court. The High Court held that no apprehended bias arose.
Constitutional law
Migration: Conditions on bridging visas
In EGH19 v Commonwealth [2026] HCA 7 (18 March 2026), the High Court (Gageler CJ, and Gordon, Edelman, Steward, Gleeson, Jagot and Beech‑Jones JJ) by majority answered in the affirmative that the relevant section was inconsistent with Chapter III of the Constitution and ordered costs against the commonwealth. There were six separate judgments given, with Gageler CJ and Gleeson J giving a joint judgment.
In response to the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 (NZYQ), the commonwealth parliament made changes to the Migration Act 1958 (Cth). It also enacted the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) and the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 (Cth). These effectively created two statutory regimes that would restrict the liberty of an NZYQ-affected person under a Bridging (Pending Removal) Visa (BVR).
These two regimes would require one of:
- an ankle bracelet and a curfew
- community supervision
- a detention order.
Failure to comply with either the curfew or monitoring conditions would result in a mandatory minimum one-year prison sentence up to a maximum of five years.
EGH19 is a citizen of Papua New Guinea and arrived in Australia in 2000, aged 11 years. He was convicted of murder as a juvenile in 2006 and served a prison sentence until 2018 when he was released from prison, but he was taken into immigration detention in 2022.
He was then convicted of domestic violence and intimidation and, in April 2024, received a three-month sentence for those offences. He was later sentenced in July 2024 to an 18-month sentence with a 10-month non-parole period. His visa was subsequently cancelled. Upon release, he was taken into immigration detention but, on the basis that there was no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future, he was granted a BVR visa.
As such, EGH19 is person who was affected by the decision in NZYQ (an NZYQ-affected person) and brought a special case challenging the constitutionality of the new measures.
The High Court cited Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, quoting Dicey, that the individual is “‘ruled by the law, and by the law alone’ and ‘may … be punished for a breach of law, but … for nothing else’” (at [18]).
There were two questions in the special case, both answered in the affirmative.
1. “To the extent cl 070.612A(1) of Sch 2 to the Migration Regulations 1994 (Cth) authorises the imposition of condition 8620 on a Bridging R (Subclass 070) visa, is that clause invalid because it exceeds the power conferred by s 504 of the Migration Act 1958 (Cth) when that power is construed subject to Ch III of the Constitution?”
2. “To the extent cl 070.612A(1) of Sch 2 to the Migration Regulations 1994 (Cth) authorises the imposition of condition 8621 on a Bridging R (Subclass 070) visa, is that clause invalid because it exceeds the power conferred by s 504 of the Migration Act 1958 (Cth) when that power is construed subject to Ch III of the Constitution?”
