In its just-released report, ‘Without Fear or Favour: Judicial Impartiality and the Law on Bias’, the Australian Law Reform Commission (ALRC) has outlined 14 recommendations which, if adopted, will support impartial decision-making and help maintain the legitimacy of the federal judiciary in a changing world.
This article summarises the Inquiry’s context, some of the consultation views and data considered by the ALRC, and a number of the report’s key recommendations.
Context for the ALRC inquiry
A fundamental tenet of our justice system is the impartial adjudication of disputes. Partiality is anathema to the concept of justice, and a perception of partiality is likely to impair public confidence in the courts, undermining the rule of law.
The impetus for the ALRC’s inquiry included a judgment of a Full Court of the Family Court in Charisteas v Charisteas. In that case, following final judgment, it became known that the wife’s counsel and the judge had been in contact outside of court while the proceedings were on foot.
This included coffee meetings and the exchange of text messages. Despite this, the Full Court of the Family Court concluded that this contact did not give rise to a reasonable apprehension of bias.
Subsequently (and after the ALRC had been given terms of reference in the Inquiry), the High Court unanimously overturned this judgment, and found that the conduct in question did give rise to a reasonable apprehension of bias. The High Court applied the test laid down in Ebner, which asks whether a fair-minded lay observer might reasonably think that the judge might not bring an impartial mind to the resolution of the dispute.
Terms of reference
The Attorney-General’s reference asked the ALRC to inquire into “whether, and if so what, reforms to the laws relating to impartiality and bias as they apply to the federal judiciary are necessary or desirable”. In particular, the terms of reference asked the ALRC to consider whether:
- the existing law about actual or apprehended bias relating to judicial decision-making is sufficient and appropriate to maintain public confidence in the administration of justice
- the law provides clarity to decision-makers, the legal profession and the community about how to manage potential conflicts and perceptions of partiality, and
- the mechanisms for raising allegations of actual or apprehended bias, and deciding those allegations, are sufficient and appropriate.
Consultations and empirical research
The ALRC’s inquiry had regard to extensive consultation and empirical data. In particular, the ALRC compiled new data by including questions in the Australian Survey of Social Attitudes, and by undertaking surveys of Commonwealth judges, legal professionals, and court users. It also conducted a comprehensive review and analysis of all judgments in the Commonwealth courts referring to recusal and disqualification from 2015-21.
The ALRC’s consultations and survey data painted a largely positive picture about perceptions of impartiality and confidence in Australian courts. For example, of the 490 participants who had attended an Australian court in the past 10 years, 76% agreed or strongly agreed with the statement that they felt the way in which the most recent court proceedings they attended had been handled was fair. However, 8% of court users surveyed expressed ‘no confidence at all’ in courts and the legal system, and 17% expressed ‘very little confidence’.
Most stakeholders did not consider that the law itself needed to be changed. However, there was a high level of support for improvements to procedures and institutional structures that support and safeguard impartiality.
Overview of some recommendations
The ALRC’s report makes 14 recommendations for reform. The ALRC considered that no change was needed to the Ebner test, but that improvements should be made to procedures and institutional structures. The summary below outlines four areas of potential reform that will likely be of particular interest to readers.
Clarification of procedures for the disqualification of judges
The ALRC found that there was a lack of clarity around procedures for the disqualification of judges, and differences in how courts approach applications for disqualification. The ALRC considered that transparency about the law and procedures should be improved through the creation of court-specific guidelines.
The publication of guidelines would make clear the processes by which claims of bias are resolved, and outline circumstances in which recusal likely would, or would not, be warranted. Such guidelines could also outline the structures and processes in place to support the impartiality of judges, thereby enhancing public and litigant confidence in them.
Discretionary transfer of disqualification applications and decisions by multimember courts
The ALRC recommended that the Federal Court and Federal Circuit and Family Court establish a new procedure for the discretionary transfer of applications for disqualification, where those cases are before a single judge. Transfer would only be discretionary, to minimise the risk of the procedure being used as a tactical tool for ‘judge shopping’, or of creating unacceptable delay, but would be matched by an expedited appeal procedure where the matter was not transferred.
At present, applications for a judge to recuse herself or himself are heard and determined by the judge whose actual or perceived impartiality is in question. A concern raised by stakeholders was that this had a ‘chilling effect’ on the willingness of parties to bring a disqualification application. There may also be legitimate doubts about the ability of a judge to bring an objective mind to the resolution of their own actual (or perceived) bias.
In addition, the ALRC recommended the Federal Court and Federal Circuit and Family Court put in place new procedures so that, where a case is being determined by more than one judge, objections on bias grounds should be decided by the court as a whole, not the individual judge concerned.
A federal judicial commission
The ALRC also recommended the Australian Government establish a federal judicial commission, with complaints-handling and educative functions. The ALRC concluded, given the bias rule’s inherent limitations, a body independent from the courts (though ultimately under judicial control) is a necessary complement to address issues of apprehended bias that have the potential to undermine public confidence in the judiciary.
Such a body could provide a number of benefits. For instance, in comparison to an appeal process, which may correct legal error in specific cases, a judicial commission can enhance judicial impartiality going forward, including by helping to address underlying issues (for example, through training and support to judicial officers).
At present, apart from petitioning the Parliament, an individual with a complaint about the conduct of a judge may make a complaint to a head of jurisdiction. However, stakeholders told the ALRC that the involvement of courts in considering the conduct of one of its judges gives rise to an inherent conflict of interest. In comparison, the proposed judicial commission would be independent and transparent, thereby enhancing public confidence.
Reforms to support institutional impartiality and support judges: appointment, training, and data
Finally, the ALRC made a suite of recommendations addressing judicial appointments, judicial education, ethical guidance, the collection of feedback and data, and accessible information about the courts.
These issues were identified through consultations as particularly important to address the limitations of the law in responding to perceived poor judicial conduct in court and the potential for social and cultural bias at an institutional level.
- a more transparent process for the appointment of federal judicial officers, that at a minimum requires a call for expressions of interest, the publication of selection criteria, and a commitment to promoting diversity without compromising the principle of merit-based selection
- the collection and reporting of statistics on judicial diversity
- a more structured and transparent approach to training and ongoing professional development for judges
- a structured and ongoing program of Aboriginal and Torres Strait Islander cross-cultural education led by Aboriginal and Torres Strait Islander people and organisations
- the revision of the Guide to Judicial Conduct as it relates to judicial impartiality
- the systematic collection of information about court users’ perceptions of procedural justice
- the formulation of a policy on the creation, development, and use of statistical analysis of judicial decision-making, and
- accessible public resources that better explain to litigants and the public how judicial impartiality is protected and promoted, and how judges are held accountable.
This article has outlined a number of the key recommendations the ALRC has made in its report on judiciary impartiality, ‘Without Fear or Favour’.
Those recommendations, if implemented, would meaningfully enhance both the actuality and perception of impartial adjudication – and thereby serve to sustain, and enhance, the legitimacy of our federal justice system and the quality of its decision-making.
Dr William Isdale and Sarah Fulton are Senior Legal Officers at the Australian Law Reform Commission.