Sarah Fulton and Geneviève Murray

Judicial impartiality — and within that, an absence of bias — is at the heart of the Australian judicial system and central to how judges see themselves. But while serving and retired judges of the High Court have had a lot to say about when judicial bias arises, they have (with some notable exceptions, as noted in the ALRC Judicial Impartiality Report, p 234) said little publicly about how such matters should be raised with and considered by the courts. Until now.

In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (‘QYFM’), judges of the High Court not only clarified the law on apprehended bias as it applies to a judge who was previously involved in the prosecution of a party, but also took the opportunity to set out their views on the processes for determining issues of bias raised in multi-member courts (such as Courts of Appeal, Full Courts, or the High Court itself).

Daniel Ghezelbash, Keyvan Dorostkar, Saul Wodak and Robert Ross

In the age of ‘big data’, governments and corporations are using data analytics to evaluate and improve programs and services across a wide range of areas. The courts have been relatively immune to this trend — but the tide may finally be turning.

The recent Australian Law Reform Commission (ALRC) Report on judicial impartiality includes ground-breaking findings and recommendations on how data can be used to promote judicial impartiality and public confidence in the legal system. The Report’s 14 recommendations draw on research from the fields of law and social science to formulate strategies to address these issues at an institutional level. A number of these recommendations focus on the role data can play in promoting transparency and judicial impartiality. This includes collecting data on court users’ subjective perceptions of procedural justice (recommendation 12) and collecting and reporting statistics regarding the diversity of the federal judiciary (recommendation 8).

Gabrielle Appleby

The Australian Law Reform Commission’s (ALRC) recent Report on judicial impartiality and the law on bias, Without Fear or Favour, makes important connections between a number of much needed regulatory reforms and the foundational judicial value of impartiality. These include connecting impartiality to judicial appointments, and to the structure and reporting of the training and ongoing professional development of judges. The ALRC has also recommended that the government establish a federal judicial commission to create an alternative mechanism for raising allegations of bias. In the ALRC’s survey of lawyers this was ranked as the most important reform that could be achieved to maintain public confidence in judicial impartiality. The Attorney-General, Mark Dreyfus QC, has indicated that he supports such a proposal.

Jessica Kerr

‘Judges need better education’. Seeing those words headlining Gabrielle Appleby’s explainer of the Australian Law Reform Commission’s (ALRC) ground-breaking Report was a proud moment for those of us championing judicial education as a ‘vitally important form of regulation’. While education is a recurring theme in what the ALRC calls the ‘institutional architecture’ of impartial judging, two related recommendations in the category of ‘institutional supports and safeguards’ are specifically directed to investment in this area.

Joe McIntyre

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.