Without Fear or Favour: The ALRC’s Report on Judicial Impartiality
William Isdale and Sarah Fulton
This is a post in a special series that AUSPUBLAW is featuring on the Australian Law Reform Commission’s report on Judicial Impartiality. This special series will be hosted across two weeks on AUSPUBLAW, and the full series can be accessed here.
12.08.2022
Last week, the Australian Law Reform Commission’s report, Without Fear or Favour: Judicial Impartiality and the Law on Bias, was tabled in the Commonwealth Parliament. It provides the first comprehensive review in Australia of the laws, practices and procedures relating to judicial impartiality and bias, and makes 14 recommendations for reform.
The Australian Law Reform Commission (ALRC) is grateful for the opportunity to contribute to this special AUSPUBLAW forum. The report is the product of the contributions of many, including litigants, judges, legal practitioners, and academics. We hope that the report generates debate and discussion regarding the merits (or otherwise) of the ALRC’s recommendations for reform, and we look forward to reading the contributions of the assembled expert commentators, as they share their views on this blog over the coming weeks.
In this post we provide a short overview of the context for the Judicial Impartiality Inquiry (Inquiry), the consultation views and data that were gathered and analysed by the ALRC, and provide a brief summary of the report’s recommendations.
The context for the Inquiry and the terms of reference
The Commonwealth Attorney-General provided the ALRC with terms of reference for this Inquiry in September 2020. These asked the ALRC to consider ‘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’. The ALRC was asked to consider in particular whether:
the existing law was appropriate and sufficient to maintain public confidence in the administration of justice;
the law provided sufficient 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 issues of actual or apprehended bias were sufficient and appropriate.
The immediate impetus for the ALRC Inquiry was a judgment of the Full Court of the Family Court in Charisteas v Charisteas (2020), arising out of long-running family law proceedings. Following judgment in the original trial, it came to light that the trial judge, during the course of the proceedings, had been in contact with one of the party’s counsel — including by meeting for coffee, and by exchanging text messages. Despite that contact, the Full Court of the Family Court considered that the judgment was not impugned on the basis of apprehended bias.
Subsequently (and after the ALRC had been given terms of reference in the Inquiry), the High Court unanimously overturned the judgment, and found the conduct in question did give rise to a reasonable apprehension of bias. The court applied the conventional test in Ebner (2000), which asks whether:
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.
The High Court’s judgment was also published in close proximity to a number of other significant judgments from Commonwealth courts concerning the law on bias, some of which attracted substantial media interest. Those judgments involved matters such as:
judges’ handling of proceedings in court;
judicial exposure to allegedly prejudicial information in related proceedings; and
the making of negative credibility findings across different cases involving the same witnesses.
The ALRC’s consultations and data analysis
During the course of its Inquiry, the ALRC spoke with over 180 individuals and organisations across every state and territory in Australia. The ALRC also received 49 formal submissions in response to a Consultation Paper released in April 2021, and 46 informal confidential submissions. These consultations provided diverse and informative perspectives on the current law, how it operates in practice, and potential reforms.
Prior to the Inquiry, no empirical studies had been carried out in Australia on how the law on bias is used and how the processes for raising and determining issues of bias are perceived. To address some of these gaps, the ALRC included questions in the Australian Survey of Social Attitudes, and undertook surveys of Commonwealth judges, legal professionals, and court users, about their experiences, perceptions, and views on potential reforms. The ALRC also carried out a comprehensive review and analysis of all judgments referring to recusal and disqualification in Commonwealth courts from 2015–21.
Consultations and survey responses broadly supported retaining the existing law on disqualification for bias, but there was significant support across the board for more guidance about the procedures for raising potential bias issues. The ALRC’s federal judgment review revealed that procedures for raising issues of bias sometimes differ between courts and judges, and that issues of conduct and prejudgment were the most likely to give rise to applications for disqualification or recusal referred to in reported judgments.
In relation to potential reforms to procedures relating to disqualification applications, lawyers and litigants consulted and surveyed expressed significant support for changes, while judges were less likely to support such reforms — concerned about the potential for alternative procedures to be used tactically to increase cost and delay. For example, 84% of lawyers surveyed (n=183) considered that there were circumstances where it was preferable that an application for disqualification be transferred to another judge, in contrast to 17 out of 60 Commonwealth judges responding to the same question. Similarly, only 23% lawyers surveyed (n=192) considered that the existing procedures encourage appropriate use of bias applications. In contrast, 50 of 59 judges who responded to the same question considered that existing procedures encourage appropriate use. The ALRC’s recommendations in this area (see further below), reflect these different viewpoints and balance the complementary values of access to justice (within limited public resources), efficiency, and public and litigant confidence.
In very broad terms, consultations and empirical data reflected high levels of trust in the Australian judiciary, but also indicated that there were pockets of discontent. A key concern raised in consultations was the limited role the bias rule can play in addressing the potential impact of social and cultural factors on judicial decision-making at an institutional level. Stakeholders also expressed concerns about certain isolated instances of poor judicial conduct that were not adequately addressed by existing procedures.
The ALRC’s recommendations
The ALRC agreed with stakeholders that the existing law on actual and apprehended bias does not need to be changed (leaving aside potential Chapter III constitutional issues concerning how such changes might be made), although it highlighted some areas that are ripe for further judicial development. Nevertheless, for the law to remain sufficient and appropriate to maintain public confidence in the administration of justice, it must be underpinned by appropriate procedures and the right institutional structures. In particular, these must reflect the evolution of the substantive law, which cements apprehended bias as an objective question of law designed to support confidence in the institution, rather than a personal affront to an individual judicial officer. The ALRC’s final report makes 14 recommendations in this regard.
In brief dot points, the ALRC’s recommendations are:
Develop and publish judicial disqualification guidelines for each Commonwealth court;
Implement a new procedure for the discretionary transfer of disqualification applications in cases before a single judge;
In cases before multimember courts, the court as constituted should determine objections on bias grounds;
Develop a streamlined interlocutory appeals procedures for disqualification decisions made by a single judge (to complement the discretionary transfer procedure referred to above);
Establish a federal judicial commission to provide a transparent and independent mechanism to consider litigants’ and lawyers’ concerns about judicial behaviour or impairment, including those that give rise to an apprehension of bias, and to proactively support judges to uphold appropriate standards (although the ALRC did not propose a particular model, consultees expressed significant support for the New South Wales and Victorian models of judicial commission);
Review the Guide to Judicial Conduct and legal profession conduct rules, in light of the High Court’s Charisteas decision;
Develop a more transparent process for the appointment of federal judicial officers on merit, involving publication of criteria for appointment, public calls for expressions of interest, and a commitment to promoting diversity in the judiciary;
Collect and annually report statistics on diversity in the federal judiciary;
Develop a more transparent and structured approach to training and ongoing professional development for judges;
Develop a structured and ongoing program of Aboriginal and Torres Strait Islander cross-cultural education for judges, led by Aboriginal and Torres Strait Islander people and organisations;
Conduct a broad review of the Guide to Judicial Conduct as it relates to judicial impartiality;
Systematically capture court users’ subjective perceptions of procedural justice;
Develop court policies on the creation, development and use of statistical analysis of judicial decision-making; and
Create accessible public resources that explain processes, structures, and mechanisms in place to support judicial impartiality and ensure judicial accountability.
Judges, and the public they serve, have recognised that human decision-making can never be completely neutral. But this does not mean that judges are biased in the legal sense, nor that they cannot be impartial in a meaningful way. The goal of the law on bias is to define the point at which the appearance of an improper influence on decision-making poses an unacceptable risk to maintaining public confidence in the administration of justice. The success of the law in achieving its aims is dependent on it being supported by appropriate procedures, implemented by the right judges, and complemented by institutional practices. If implemented, the ALRC’s recommendations will better support litigants, lawyers, and judges to navigate issues of actual and apprehended bias, demonstrate the courts’ commitment to securing judicial impartiality, and address institutional biases beyond the scope of the bias rule. In doing so, the recommendations will help to maintain the confidence of litigants, the profession, and the courts’ diverse publics in the years to come.
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William Isdale is a Senior Legal Officer with the Australian Law Reform Commission, and an Adjunct Fellow of the University of Queensland's School of Law
Sarah Fulton is Acting Principal Legal Officer at the Australian Law Reform Commission, and an Adjunct Senior Lecturer at the University of Queensland’s School of Law.
Suggested citation: William Isdale and Sarah Fulton, ‘Without Fear or Favour: The ALRC’s report on Judicial Impartiality’ on AUSPUBLAW (12 August 2022) <https://www.auspublaw.org/blog/2022/08/without-fear-or-favour-the-alrcs-report-on-judicial-impartiality>