Worth Waiting For: The ALRCs Without Fear or Favour Report
Joe McIntyre
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.
19.08.2022
Vladimir: … Astride of a grave and a difficult birth. Down in the hole, lingeringly, the grave digger puts on the forceps. We have time to grow old. The air is full of our cries. (He listens.) But habit is a great deadener.
Samuel Beckett, Waiting for Godot (1952) Act II
All law is politics. But law is not just politics. At its best, it can rise above: challenge and engage us to be better, to take responsibility and guide our society. Of course, it can collapse in the other direction: be reduced a tawdry imposition of blind power by the powerful.
Perhaps nowhere is this clearer than in the exercise of the judicial function, where that anguish of choice by the very human judge – replete with biases, personalities and integrity - can so profoundly shape the evolution of the law, and indeed the society from which it emerges.
The interplay between politics, partisanship and judging has been on stark display globally over the last few years. From Miller No 2 [2019] to Dobbs [2022], the role of judges (collectively and individually) in shaping law and society has rarely been more apparent. Similarly apparent has been our vulnerability to the quality of individual judge and their commitment to judicial values.
Despite their glamour, each case each represents only a fleeting moment. While it is easy to focus purely on the flash of a decision, it is sometimes critical to revel in the larger picture of the operation of the judicial system as a whole.
In the Final Report of its Judicial Impartiality Inquiry (Inquiry), Without Fear or Favour, the Australian Law Reform Commission (ALRC) seizes such an opportunity to deliver a subtly revolutionary endorsement of the judicial system and the values upon which it depends. In doing so, it highlights the humanity – indeed the artistry – involved in judicial decision-making, and rejects mechanistic conceptions of justice demands.
In this post I provide a critical overview of the Report, positioning it in the political context from which it emerged, and highlighting and commenting on some of the key propositions and recommendations.
‘Astride the Grave’: The Background
The ALRC’s Inquiry could so easily have become an exercise of Absurdism, conceived by the gravedigger only to be buried on delivery. In September 2020, then federal Attorney-General Christian Porter asked the ALRC to examine the need for and potential scope of reforms to the laws relating to impartiality and bias as they apply to the federal judiciary.
The apparent impetus for the referral was the then latest decision in the protracted family law dispute of Charisteas v Charisteas [2020]. That instance case concerned propriety of extra-curial contact between the sitting judge and one of the lawyers in the underlying case. At the time of the referral, the matter was subject to an outstanding special leave application. Ultimately, the High Court granted special leave, and allowed the appeal through an entirely orthodox application of existing law. On its face, this was a routine example of the rigorous checks and balances of the judicial process, interrupted only by concocted political outrage mid-process.
This putative impetus was, in reality, hollow: there was no clear reason why this Inquiry was needed, nor why it was needed at this time. As the ALRC itself notes, ‘public confidence in judges and the courts in Australia is generally high’, and there has been ‘no crisis of confidence in the Commonwealth courts in Australia’. Ultimately, the ALRC found that the ‘existing law … does not require amendment’ and put forward no recommendations to the alter the substantive law.
There is a strong lingering sense that this Inquiry was conceived as an act of pure politics, as a stick to beat the judiciary. Conservative culture war attacks on the judiciary are a common trope, and a number of high profile cases in recent years have become lightning rods for attacks on the judiciary in this country. There is a compelling case that Charisteas was used as a device to justify the exposure of a judiciary out of touch with community expectations and committed to protecting only itself. The Terms of Reference speak to an expectation that the existing law was obviously flawed.
Yet the problem with playing politics with our legal institutions is that law is, at its heart, an evidence-based rationalistic discourse. Once the Inquiry was released into the wild it rapidly evolved beyond original political expectations. The catch-all Term of Reference ‘related matters’ became an invitation to reflect deeply on all aspects of judicial impartiality including structural practices. The very politics of the Inquiry’s conception became in turn an unspoken demand to protect against such politicisations – from appointments to court processes and broader education. The numerous and scholarly interim background papers left little doubt as to the trajectory of the Inquiry.
It was therefore, entirely unsurprising (indeed predictable) that the Report has suffered a difficult birth. It was delivered to the former Attorney-General Michaelia Cash (who replaced Porter following his well-publicised political demise) in December 2021, where it was duly and promptly buried. The ideals articulated so clearly in the Report were deeply inconvenient to the former government; partisan appointments, including judicial appointments, in the dying days of its term more clearly on brand.
And yet.
Rather than give in to the existential despair of the this overwhelmingly obvious political context, the ALRC has embraced that flashing moment of life between painful birth and inescapable death to produce something quite transcendental. And with a new political context there is a real chance it may inspire genuine reforms.
‘Let us not waste our time in idle discourse’: Overview of the Report
In its final reckoning the ALRC embraced an approach that amounted to an implicit, yet compelling refutation of the politicisation of our courts. Rather than take a narrow focus on the doctrinal law, the ALRC leant into the demands of judicial theory to engage in a wholistic and rigorous exposition of judicial impartiality in contemporary society. In doing so, it highlights how the pursuit of judicial impartiality (and other core judicial virtues) requires a deep commitment to, and protection of, our courts at all levels of society. Moreover, it challenges the judiciary itself to reflect upon its own assumptions about competence and impartiality in light of scientific and comparative experiences.
The Report is divided into four main parts (1) Foundations; (2) Mechanisms for Raising and Determining Issues of Bias; (3) The Law on Actual and Apprehended Bias; and (4) Complementary Structures to Support Judicial Impartiality and Public Confidence. Each Part provides a detailed analysis of the topic of inquiry, and is scholarly, comprehensive, multifaceted, and interdisciplinary in the best possible way. Isdale and Fulton, in the first post in this series, provide an overview of the Report and its recommendations, and I do not attempt to replicate that task.
Rather, I will make some comments on the Report as a whole, with a focus on the Foundations which lays out the path to the expansive approach to the Inquiry undertaken by the ALRC.
Foundations begins with a comprehensive and scholarly engagement with the foundational principles of judicial impartiality: its history, its purpose, its limitations, and its relationship to other core judicial values. By doing so, it provides a conceptual foundation for all subsequent discussion. But this Chapter also does something more profound: by adopting a wholistic and derivative conception of judicial impartiality, embedded within a broader framework of the judicial function, this foundation demands the wide-ranging inquiry in which the ALRC engaged.
The Report locates judicial impartiality as a core judicial value – but one that is derivative in nature and limited in scope: impartiality is seen as ‘necessary to fulfil the judicial function’ but must be ‘judged against a background of the matters that judges can properly consider under the judicial method’ (52) The Report describes a conception of judicial impartiality that seeks to protect ‘against improper and unacceptable influences in judicial decision-making’ (62).
This conception fundamentally matters, as it reveals that achieving (sufficient) judicial impartiality depends, as the Report notes, upon ‘an attitude and a process’ (63). We cannot look for comforting certainties and bright lines in this context; identifying a particular influence/practice as an illegitimate bias itself requires a very human act of evaluation upon which opinions may properly differ. The regulation of judicial impartiality cannot ever be adequately codified or reduced to digital binaries. Rather it depends upon judicial culture and integrity, aided by principled and considered procedures, to deliver a contestable ideal. The substantive law of Ebner [2000] and Webb [1994]recognise this conception. Ultimately, such an aspiration speaks to the inherently human nature of our judicial processes.
This is though, a conception of the judicial function that can grate intensely against the political agenda of a gravedigger wishing only a fleeting life for moments of judicial power.
And that is why it is so important that the Report begins by so explicitly laying down the foundational bedrock of guiding principles to understand, limit, and direct the subsequent discussion of judicial impartiality. This Chapter lays out, in transparent detail, precisely why it is necessary for the Inquiry to develop in the way that it does. This work culminates in the articulation of six guiding principles, which represent an artful distillation of this discussion:
These principles, refined from those in the earlier Consultation Paper, are explained and justified in the Chapter, then integrated throughout the subsequent discussion. This distillation is intensely valuable: these principles ought to be the touchstone for every future discussion of judicial impartiality in this country (and elsewhere).
From this conceptual foundation, the Report moves on to provide a clear, concise overview of the doctrinal law on actual and apprehended bias in Australia. This articulation of the substantive law without any significant critique is indicative of the broad acceptance of the current law. Throughout the Inquiry, the ALRC encountered ‘little appetite for reform of the law’ (83), although there was broad recognition of the need for ‘the existing law to be explained in a way that was more easily understood by litigants’ (351). This Chapter will provide a valuable resource in developing the types of public education called for in Recommendation 14.
From its doctrinal baseline, the Report then looks at the broader context of ‘bias’ from a social and psychological perspective. This is a significant step in the development of Australia’s judicial culture. Too long there has been a substantial element of neo-formalism – a lingering commitment to a Dixonian concept of ‘strict legalism’ that excludes the honest recognition of judicial choice and values. There have been significant endorsements for such a judicial philosophy and its belief in a ‘right’ answer. This Report provides a clear refutation of this myth: our human judges are subject to pervasive and unavoidable biases which affect their judicial decision-making. This is the cost and strength of a system that relies on human judges. The Report marks a significant moment in which recognition of this reality is thrust into the juridical mainstream.
In a similar way, in its fourth Chapter the ALRC provides a strong endorsement of contemporary empirical research in understanding complex legal problems. The ALRC recognised the significant gaps in empirical data on the operation, understanding, perceptions courts and the experiences of court users. In response, the ALRC undertook a series of surveys to gather a ‘more comprehensive evidence base and help inform its understanding of issues relating to judicial impartiality’ (138). This approach endorses an understanding of judicial impartiality that is emerges from our social institutions and perceptions of the public it is not just the law that matters, but also how people understand and perceive it.
Together, the four Chapters of Foundations – in weaving together theory, doctrine, interdisciplinary perspectives and empirical evidence – set out an approach to judicial impartiality that is necessarily expansive and holistic.
In Parts 2 and 3, the Report provides an in-depth critical analysis of the practice and procedures by which judicial impartiality is protected in instant disputes. By exploring, then rejecting, the potential for codification, the Report provides an in-depth overview operation of systemic mechanisms to protect against potential improper and unacceptable biases.
It is, though, in Part 4 that the implications of the holistic approach of the Inquiry become apparent. The ALRC recognises that it is better to take prophylactic actions to protect judicial impartiality than to focus purely on reactionary responses. In doing so it lifts the eye to focus upon the structural and institutional supports upon which judicial impartiality ultimately rests, including strong appointment mechanisms, public understanding and confidence, and good judicial administration.
‘And Habit is the Great Deadener’: The Key Recommendations
The ALRC’s recommendations are, ultimately, an acknowledgment that some reforms are needed to protect the ongoing legitimacy and integrity of our courts, and to maintain public confidence in them.
Australia is privileged in our courts. They are strong, independent, and overwhelmingly comprised of judges with a strong commitment to the rule of the law. But habit is the great deadener. A high-quality judiciary in which the public have confidence is not something that can be taken for granted. And there are potential dark clouds on the horizon: the politicised context of the Inquiry itself provides a taste of just one those swirling forces.
In its fourteen recommendations, the ALRC recognises that the protection of judicial independence requires a focus on much more than the content of the substantive law. Rather, it is about creating institutional supports and safeguards that foster a culture of independence and impartiality within the courts and a political/social culture that supports and understands these judicial values. The recommendations (usefully summarised here and here) suggest not only refining existing practices, but also assisting the court to better discharge their tasks through guidance and support, as well as educating the public about the functions of our courts.
Recommendations 2-4 set out some refinements to self-disqualification procedures and appeal mechanisms. Recommendations 1 and 6 suggest the development of guidelines and specific rules to add clarity and predictability in the operation of the mechanism. None of this is controversial and instead offer incremental refinements.
More challenging is the recommendation to establish a Federal Judicial Commission, which as the Report notes would be a ‘significant reform’ (310). While I personally am sceptical about the costs versus benefits of judicial misconduct commissions, there was broad support for such a Commission. Despite my reservations, if such a Commission is designed to support judges and enhance public confidence it has the potential to become a new pillar in projecting a reputation for judicial impartiality.
Perhaps the most (politically) controversial recommendation, though, is the call for much needed reforms to the federal judicial appointment system. As Lynch noted earlier in this series, judicial appointments are ‘a topic that some may not have anticipated as one to emerge from the review’. But the issue is one that necessarily follows from the broad foundation set out in the first Part of the Report. While, this recommendation should provide critical further momentum for these reforms (despite not covering significant new ground), it no doubt also contributed to the delay in releasing the Report under the previous government.
The remaining recommendations set out a range of other structural and institutional measures to enhance judicial impartiality – better training; better data gathering and dissemination; processes for better understanding users experiences; and (critically) a strong endorsement of better court education for the public. All these recommendations deserve robust support.
Existentialism and the Courts: Conclusions
So, what is the final reckoning of the Report? This depends, perhaps, on our endorsement of the core principles enunciated and our commitment to the concept of strong courts.
We should not shy away from this last point. In the coming decades we are likely to see profound, perhaps existential, challenges to our courts. Issues of access to justice and the alienation of the public from effective engagement with courts has become acute. Justice technology is rapidly changing how we experience judicial processes, and AI threatens to overshadow all changes so far. As experiences in the US and UK have demonstrated so clearly, there can be significant threats to courts when political expediency leads to interfering with, and indeed attacking, judicial independence and impartiality.
For our courts to resist such pressures, and indeed for them to thrive in the coming century, it is necessary that those of us committed to the judicial system unflinchingly and confidently assert the worth to society of a strong and fair judicial system. It is critical that we clearly establish, for the public, that the judicial function is one that is worth retaining.
This is not something to take for granted. Rather, it demands a willingness from all jurists to engage in self-critique and reflection, and to undertake refinements when necessary. But more than this, it demands a willingness to educate and engage the public and political classes on the nature of the judicial function, and to challenge dangerous myths.
Judges are human. They have biases. They rely on intuitions. They have emotions. They engage in complex evaluations, every day. And in doing so they make and shape our law, every day.
These are not flaws in the system. They are the very beauty and genius of the system.
The ALRC Without Fear or Favour Report provide a powerful endorsement of this system, and a refutation of mechanistic justice. Ultimately, we protect this system best by being painfully honest and open about its strengths, weaknesses, and benefits. Hiding behind comfortable truths is no option.
Beckett forced audiences to stare open eyed into the bleakness of modernity, refusing to provide simple, beguiling answers. This was not, though, a counsel of despair. It was an acknowledgment of reality: as soon as we are born, we start dying. But he allows that there can be something glorious between those moments.
The Report resonates with this Beckettian approach. For those who would pretend that courts are pure syllogism machines, the honest acceptance of human agency and biases in this report will be confronting. But it is this very humanity of our judges that allows our courts to deliver the nuanced, responsive, engaged, and discursive service that is the brilliant judicial function.
In a Report that could so easily been suffocated by the political winds that blew around it, the ALRC has – by valuing that fragile humanity, and avoiding comforting false certainties – delivered a Report that shines. More so, it challenges us to participate in illuminating for the public the special nature of our judicial institutions and inviting the public to engage in their development and protection.
The Report does not descend into false flattery, but nor is it unduly critical of the system. It accepts that broadly our judicial system deals with concerns of judicial impartiality well, but highlights ways in which it can, perhaps, do it better. In doing so, the Report sounds a clarion call for all legal practitioners, judges, academics, and citizens to not take courts for granted, nor give in to a counsel of despair, but to take up that vital task of ensuring that our courts remain strong, vibrant, impartial, and independent.
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Dr Joe McIntyre is an Associate Professor at the University of South Australia School of Law
Suggested citation: Joe McIntyre, ‘Worth Waiting For: The ALRCs Without Fear or Favour Report’ on AUSPUBLAW (19 August 2022) <https://www.auspublaw.org/blog/2022/08/worth-waiting-for-the-alrcs-without-fear-or-favour-report>