The Australian Law Reform Commission (ALRC) report, ‘Without Fear or Favour: Judicial Impartiality and the Law on Bias‘ (Report 138, 2021), was tabled in Federal Parliament today by the Attorney-General, Mark Dreyfus QC.
The report makes 14 recommendations to promote and protect judicial impartiality and public confidence in the Commonwealth judiciary. They include:
- reforms to the procedures Commonwealth judges use to determine whether they should withdraw from a case when a party raises a potential issue of bias
- publishing guidance on how litigants should raise issues of bias with a judge and how such issues are decided
- establishing a Federal Judicial Commission as an additional and accessible oversight mechanism to support litigant and public confidence in judicial impartiality, and
- strengthening institutional structures to support judges and address systemic biases, including through changes to appointment procedures, judicial education, and collection of court user feedback and case data in the Commonwealth courts.
ALRC President Justice SC Derrington said the inquiry had found that public confidence in Australian judges was generally high, and that judges took their oath of office to administer impartial justice seriously.
“More could be done to increase certainty and visibility of existing procedures relating to bias, to understand and respond to litigants’ experiences and concerns, and to address the potential for institutional biases,” Justice Derrington said.
“The recommendations support transparency, equality, integrity, and fairness to provide a robust framework for judicial impartiality and public confidence in it.”
The inquiry was prompted by decision of a Full Court of the Family Court of Australia in Charisteas v Charisteas concerning personal contact between the trial judge and counsel for one of the parties.
During the ALRC inquiry the decision was overturned by the High Court, which clarified several issues relating to the law on bias.
The inquiry relates to the law as it applies to judges in the High Court, Federal Court, and Federal Circuit and Family Court.