Professor Hoong Phun (HP) Lee is Emeritus Professor of Law at Monash University where he held the Sir John Latham Chair of Law from 1995-2014. He was also deputy dean and associate dean (staffing) in the Faculty of Law for a number of years. He was formerly an adjunct professor of law at the Northern Territory University (now Charles Darwin University) and the City University of Hong Kong.

He is an advisory member for the Singapore Journal of Legal Studies, the Singapore Academy of Law Journal, the Asian Journal of Comparative Law and the Australian Journal of Asian Law. Professor Lee was awarded the Australian Vice-Chancellor’s Committee Visiting Fellowship (1988), the LAWASIA Research Institute Fellowship (1994) and the Australian Press Council Medal for Outstanding Service (2011). Professor Lee’s publications include The Australian Judiciary (2nd ed. Cambridge University Press, 2013) (co-author) and Judiciaries in Comparative Perspective (Cambridge University Press, 2011) (editor). He is currently co-editing a book on Asia-Pacific Judiciaries: Independence, Impartiality and Integrity (to be published by Cambridge University Press) and working on a second edition of Constitutional Conflicts in Contemporary Malaysia (to be published by Oxford University Press, Clarendon).

Professor Lee's current areas of research include the judicial institution and judicial independence, the constitutional and legal dimensions of national security issues and Australian and Malaysian constitutional law.


Michael is an LL.M. candidate and Charles B. Bretzfelder Constitutional Law Scholar at Columbia Law School, focusing on national security law and theory, international law, constitutional law and human rights law. He holds an LL.B. from Monash Law School and a B.Media from Adelaide University, both with First Class Honours.

Formerly, Michael was a policy advisor at the Victorian Law Reform Commission. There, he worked on medicinal cannabis reform, and advised the Chair of the Commission, the Hon. P.D. Cummins AM, on human rights issues around the conviction and punishment of persons with mental impairments as well as issues in the reform of the law of trusts.

He was also a lecturer in Constitutional Law at Monash Law School. In 2012-13, Michael was the associate to the Hon. Justice Pamela Tate of the Supreme Court of Victoria, Court of Appeal.


Description

In this article, Michael Adams and Professor H P Lee explore the operation of the practice of judicial recusal in Australia and New Zealand. The rule against bias is a fundamental pillar of the rules of natural justice which buttress the importance accorded to the need for courts to be fully impartial. In Australia and New Zealand and many of the common law countries, when the impartiality of a presiding judge is contested the general approach is for the judge to make a determination whether to recuse from the trial. The test which is applied in the face of a bias allegation against a presiding judge is the test of 'a reasonable apprehension of bias'. The attendant difficulties posed by this test are examined through an excursus of a controversial saga involving Justice Wilson in New Zealand. The question is also posed as to whether the recusal decision of an apex court judge can be subject to review by the remaining judges of the apex court. The issues of whether the current system of self-regulation of judicial recusal should be replaced by statutory regulation is considered in light of the experience in the United States, and the article considers whether a register of pecuniary interests of judges should be established. The adequacies of the current mechanisms for dealing with complaints against judges and their removal are also considered.