Members of the public

Last updated 2 August 2022

Australian Survey of Social Attitudes 2020

The Australian Survey of Social Attitudes (AuSSA) is a study conducted annually by the Australian Consortium for Social and Political Research Inc (ACSPRI) that considers the social attitudes and behaviours of Australian citizens. AuSSA is Australia’s official survey in the International Social Survey Program.  Participants are selected using a random sample from the Australian Electoral Roll, and are contacted by post.

The ALRC included seven questions in the 2020 AuSSA survey, to better understand trends in public confidence in the courts and the legal system, and contact with the courts. The 2020 survey was sent to 5000 randomly selected Australian citizens (272 ineligible), with a response rate of 25% (n=1162).

For description and analysis of responses and a summary of methodology see Chapter 5 and Appendix F of the Final Report.

 Documentation and data

• AuSSA 2020 – ALRC questions
• AuSSA 2020 – Full survey questions – available through the Australian Data Archive
• Raw response data will be made publicly available in 2024 through the Australian Data Archive

During the course of the Inquiry the ALRC also published a preliminary analysis of responses to AuSSA 2020. This provided stakeholders with an initial snapshot of some of the key data from the survey as the research and analysis progressed.  However, for final figures and analysis please refer to the Final Report.

Last updated 2 August 2022

ALRC Surveys and Case Review

To inform its final recommendations in the Inquiry the ALRC conducted four surveys of key stakeholders and carried out a systematic review of published judgments of Commonwealth courts referring to recusal and disqualification.

A summary of the methodologies used, data collected, and relevant findings is provided in Chapter 5 of the Final Report. Further detail on methodology is provided in Appendix F of the Final Report.

Documentation and Data

Below are links to supporting documentation for each of the surveys and the case review, select data from the ALRC Survey of Lawyers and ALRC Survey of Court Users, and full data from the ALRC Case Review.

• Members of the public – Australian Survey of Social Attitudes 2020 (AuSSA)
• Federal Judiciary – ALRC Survey of Judges
• Practitioners – ALRC Survey of Lawyers
• Court Users – ALRC Survey of Court Users 
• Systematic review of published judgments on recusal and disqualification – ALRC Case Review

Note on publication of survey data

The ALRC has published raw data from surveys on its website where it can do so while respecting participant confidentiality. The data published excludes open text responses and some demographic data. Researchers interested in accessing further raw data are invited to contact the ALRC directly. Data for AuSSA 2020 will be made public by the survey’s administering body in 2024.

The ALRC has released a Final Report, three interim reports and twelve background papers as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation. The Final Report was tabled on 18 January 2024.

The background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. They address key principles and areas of research that underpin the development of the ALRC’s recommendations.

Interim Report C Background Papers:

• Reflecting on Reforms III – Submissions to Interim Report C (FSL12)

Interim Report B Background Papers:

• Superannuation and the Legislative Framework for Financial Services (FSL11)
• Reflecting on Reforms II – Submissions to Interim Report B (FSL10)
• All roads lead to Rome: unconscionable and misleading or deceptive conduct in financial services law (FSL9)
• Post-Legislative Scrutiny (FSL8)
• New Business Models, Technologies, and Practices (FSL7)

Interim Report A Background Papers:

• Reflecting on Reforms – Submissions to Interim Report A (FSL6)
• Risk and Reform in Australian Financial Services Law (FSL5)
• Historical Legislative Developments (FSL4)
• Improving the Navigability of Legislation (FSL3)
• Complexity and Legislative Design (FSL2) 
• Initial Stakeholder Views (FSL1)

How does the law on bias square with what we now know about human decision-making?

How does the law on bias fit with what we know about how judges make decisions and the conscious and unconscious influences on those decisions? Background Paper JI6 explores the expanded knowledge we now have about how human decision-making works. We now know that the brain will often take shortcuts when making decisions — and while these shortcuts are generally useful and allow us to function — they bias decision-making and can lead to error. These shortcuts often operate at the subconscious level, so we don’t even know it is happening. And they’re more likely to be at play when we make decisions quickly, or under stress (JI6:11–13).

Background Paper JI6 explores two key types of biases arising from these shortcuts that have increasingly been considered relevant to judicial decision-making.  The first are ‘cognitive biases’ — systematic tendencies in how we think that might lead to error — such as the tendency to interpret information in a way that confirms and reinforces pre-existing beliefs and opinions (JI6:14–17). Connected to these are ‘social biases’, by which people ‘automatically form impressions of people, or leap to conclusions, based on the social group that they are a member of’. These social biases are ‘driven by attitudes and stereotypes that we have about social categories, such as genders and races’ (JI6:14, 18–24). In recent years behavioural scientists, legal academics, economists, and psychologists have carried out extensive research to measure the overall impact of these biases — including on judicial decision-making — and it can be significant. However the research also shows that — through the use of certain strategies — their impact can often be mitigated, or even removed (JI6:16–17, 25–31).

How does the law on bias measure up in light of these more insidious biases that are difficult to assess and predict in an individual case? In some ways the law already employs mechanisms to help counter them. For example, the requirement for reasoned decision-making focuses the mind on more systematic, conscious, types of thinking. In addition, their oath of office and strong ethical commitment to impartiality (see JI5.12–24) is one way of motivating judges towards being reflective about biases they may hold and to take steps to counter them. When considering bias, judges need to consider what a ‘fair-minded lay observer’ would think of the situation. This can assist judges to take a step back rather than simply relying on information confirming their initial ‘hunch’ (JI6:49). The law also considers exposure to irrelevant information as a potential reason for judges to remove themselves from a case (JI1:33) notwithstanding the law predates our detailed scientific understanding that it is cognitively very difficult for even trained decision-makers to put irrelevant information out of their mind (JI6:17).

In other ways the law and procedures associated with it do not necessarily sit well with recent knowledge about decision-making. For example, the self-recusal procedure requires the judge who is challenged for bias to make the decision whether or not to stand aside (see further JI2). This places an even greater burden on judges (and appears even more strange to observers) now that we know that even judges have a ‘bias blind spot’ and are much more likely to perceive themselves as less biased than others (JI2.22 and JI6.53). In light of this, the ALRC has proposed a change in procedures so that a decision on whether a judge should stand aside could be referred to another judge in some circumstances, or in appeal cases be decided by the court as a whole (Proposal 6 and Proposal 8). Alternatively, the ALRC has asked whether appeal procedures while the case is ongoing should be formalised so that any decision not to stand aside can be reviewed quickly (Question 7).

In relation to social biases, the law will only deal with these if a judge clearly expresses them, such as through clearly discriminatory language or (possibly) by express reliance on a social stereotype (JI6.41). That leaves what we now know about the more invidious impact of social biases — that we all hold — untouched by the law on bias. There may well be good reasons for that, given they are so difficult to measure and predict in an individual case and the fact that they are so closely tied to a judge’s identity (JI6.41–44). But our knowledge about the overall impact of social biases means that there is an important imperative to acknowledge and address them through other institutional structures. In its Consultation Paper the ALRC has made a number of proposals and asked questions in relation to issues that it considers potentially important in this area. These include in relation to judicial appointments and judicial diversity (Proposal 14, Proposal 15, and Question 16) judicial orientation and education (Proposal 17, Proposal 18, and Question 19), ethical and other support of judges (Question 20 and Question 21), and the collection of data (Proposal 23, Question 24 and Question 25).

Find out more about making a submission so we can hear your views.

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1. Not published

2. Not published

3. Dr Monika Zalnieriute

4. Not published

5. Not published

6. Not published

7. Not published

8. Not published

9. Eddie Fraser

10. Mary Liu and Katherine Ryan

11. Rus Taslin

12. Not published

13. Not published

14. Dr Jason Chin

15. Not published

16. Deakin Law Clinic Policy Advocacy Practice Group

17. Aboriginal Legal Service of Western Australia

18. Family Law Practitioners’ Association of Western Australia

19. Not published

20. Emerita Professor Kathy Mack and Professor Sharyn Roach Anleu

21. Philip Marcus

22. Not published

23. Associate Professor Andrew Higgins and Dr Inbar Levy

24. The Samuel Griffith Society

25. Not published

26. Women Lawyers Association of New South Wales

27. Irene Park and Prue McLardie-Hore

28. John Tearle

29. Macquarie University and the Behavioural Insights Team

30. Progressive Law Network, Monash University

31. Australian Judicial Officers Association

32. Associate Professor Kylie Burns

33. Professor Tania Sourdin

34. Associate Professor Maria O’Sullivan, Dr Yee-Fui Ng and Associate Professor Genevieve Grant

35. Deadly Connections Community and Justice Services Ltd

36. Not published

37. Law Council of Australia

38. Not published

39. Jaqueline Charles CF

40. NSW Society of Labor Lawyers

41. Not published

42. Asian Australian Lawyers Association

43. Australian Bar Association

44. National Justice Project

45. Not published

46. Dr Joe McIntyre

47. Not published

48. New South Wales Young Lawyers

49. Don Huggins

The call for submissions in response to the Consultation Paper closed 30 June 2021.

Does the law on actual and apprehended bias remain appropriate and sufficient to maintain public confidence in the administration of justice?

Where a party to litigation before the courts has concerns that the judge presiding over the matter may be biased, the party has two options. The first is to try to show that the judge is actually biased — but this is difficult to prove and is rarely alleged (JI1.8). More commonly, the focus is on appearances: a party will try to show that the circumstances might give rise to a reasonable perception that the judge might be biased (for example, because the judge is close friends with one of the witnesses). This is known as ‘apprehended bias’ (JI1.9). If apprehended bias is shown, judges must remove themselves from the case, even if they are sure that in fact they could decide the case impartially.

There is no legislated list of situations that will give rise to apprehended bias. As a result, judges are required to decide each case on its own facts, by reference to case law (JI7.60). The test for apprehended bias asks judges to look at the matter from the perspective of a fictional member of the public — the fair-minded lay observer. In Australia, the test for apprehended bias is

whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts ‘might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question’ (JI7.6) (emphasis added).

This test is designed to avoid even the appearance or suspicion of biased decision-making, while enabling the efficient and fair administration of justice (see further JI7.1). How? Framing the test in terms of what the fair-minded observer thinks, rather than what the judge thinks, asks judges to look at the application for disqualification objectively; from the perspective of the public and those affected by the decision (JI7.5, 7.20). It has been held that this is more likely to uphold public confidence in the administration of justice.

As discussed further in Background Paper JI7, some have questioned whether this law works appropriately to fulfil its rationale in upholding public confidence. One key criticism is that the construct of the fair-minded observer is a ‘flimsy veil’ for the judge’s own views about whether it is appropriate to hear a case (JI7.22). In practice, the fair-minded observer can be attributed lots of knowledge about the culture of the legal profession and of the case itself, more than an average member of the public could know (JI7.29, 7.32). As a consequence, preliminary research shows there can be a significant gulf between the actual views of the public-at-large, and the types of decisions reached by applying the test (JI7.32–33). Further, the case-by-case decision-making leads to unpredictable results about whether a judge should sit (JI7.30). This kind of uncertainty can be hard for litigants to accept and can undermine public confidence in the administration of justice — particularly when the existing procedure requires the judge who is the centre of the claim of bias to make the decision about whether or not to sit (JI7.37, JI2).

Background Paper JI7 also outlines a number of suggestions that have been made for reform of the test for apprehended bias. For example, some scholars suggest that a code or other official document could be developed to provide clarity as to circumstances that will require a judge to disqualify himself or herself (JI7.45). This could work like a traffic-light system of situations which: require disqualification (red), may require disqualification (orange), and are okay (green). Constitutional protection of the independence of the judiciary means that it may not be possible to introduce such a list through legislation in Australia (JI7.46).  As an alternative, the ALRC seeks views in its Consultation Paper on whether there would be benefit in a judge-led process to agree and publish such a list (Question 4). Alternatively or in addition, the ALRC has proposed that the courts provide greater clarity to litigants through a court-issued document explaining the test (Proposal 3).

Does the test feel odd? Maybe to some (JI7.36). The idea that a judge is able to step into another’s ‘shoes’ to answer an introspective question does not necessarily sit easily with non-lawyers (JI7.36). However, on balance, most scholars, commentators, and judges suggest the test for apprehended bias remains a flexible and valuable tool in facilitating the efficient and fair administration of justice (JI7.38). While, of course, the fair-minded observer is a construct, its inclusion in the test has utility in reminding judges to decide applications for disqualification with the concerns of a non-judicial observer in mind (JI1.18, JI7.37).

Do you think the law on actual and apprehended bias gives sufficient clarity to decision makers, lawyers, and members of the public? The Consultation Paper asks a number of questions to prompt your answers – particularly relevant here are Proposal 3 and Question 4. Find out more about making a submission so we can hear your views.

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Are the current mechanisms for raising and deciding allegations of actual or apprehended bias sufficient and appropriate?

When a concern about judicial impartiality arises in the course of litigation, parties may raise the issue following conventional procedures that centre on a self-disqualification model. The judge who is the focus of the claim of bias then decides whether she or he can continue to hear the case (see further JI2, JI1.46–53). This is true both when a judge sits alone and (generally) when a judge sits as a member of a panel, such as on an appeal court.

This has been a controversial aspect of the way the law on bias operates, and the ALRC has identified mixed views on the existing procedure. One academic and former judge described the self-disqualification procedure as being ‘strange to the point of perversity’.[1] There is some concern that the procedure is damaging to public confidence in the administration of justice (see JI2.26–27, JI1.55). In addition, the existing procedure does not sit well with research insights from behavioural sciences — such as evidence that it is more difficult for us to see bias in ourselves than in others (the bias blind spot) (see JI6.53, JI2.22). As one academic notes, requiring judges to look objectively at their own perceived bias ‘demands an almost inhuman level of impartiality’.[2] The Full Court of the Federal Court of Australia has also recently called into question the universal suitability of the procedure.[3]

In response to these concerns, the ALRC has put forward some alternative procedures for discussion its recent Consultation Paper.  

• Proposal 6 would see certain bias applications in cases heard by a single judge decided by the duty judge.
• Question 7 asks about formalising an interlocutory appeal procedure in relation to bias applications.
• Proposal 8 would see bias applications concerning a judge on a panel determined by the whole court.

The proposals aim to remove or limit the role played by the judge who is the subject of the bias claim, while minimising any increase in the cost or time required to resolve the issues. The ALRC is interested in hearing views on whether the proposals strike the right balance. It is also keen to hear whether stakeholders think a change in the procedure could raise other concerns — such as increasing the use of bias applications as a tactical tool to create delay or engage in judge-shopping (see further JI2.42–47).

The Consultation Paper also sets out a number of other questions and proposals about procedures — including on greater clarification and transparency about procedures for both lawyers and litigants (Proposal 2 and Proposal 3) and the introduction of additional screening mechanisms before cases are allocated to judges (Question 9).

Find out more about making a submission so we can hear your views.

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[1]               Sir Grant Hammond KNZM, Judicial Recusal: Principles, Process and Problems (Hart Publishing, 2009) 144.
[2]               Anna Olijnyk, ‘Apprehended Bias: A Public Critique of the Fair-Minded Lay Observer’, AUSPUBLAW (3 September 2015) <auspublaw.org/2015/09/apprehended-bias/>.
[3]               GetSwift Limited v Webb [2021] FCAFC 26 [4] (Middleton, McKerracher and Jagot JJ).

Is the law on actual and apprehended bias appropriate and sufficient to maintain public confidence in the justice system?

Judicial impartiality is a core value of our legal system — central to the proper functioning of the courts and key to litigant (and public) perceptions of fairness. Australian courts have long recognised that the ‘public is entitled to expect that issues determined by judges and other public office holders should be decided, among other things, free of prejudice and without bias’[1] (JI1.1–4).

The Australian judiciary is highly respected internationally for its integrity and impartiality, and generally enjoys a high level of public confidence. Complaints about judicial conduct across all Commonwealth courts are extremely rare, accounting for a miniscule proportion of total cases heard (JI3.31–33; JI5.56). While a complete picture of disqualification applications for actual and apprehended bias in Commonwealth courts is not available, the ALRC’s preliminary research reveals that they also appear to be very uncommon (JI3.34–41).

However, given the central importance of the value of impartiality, the law and institutions supporting it require regular review to ensure that they operate effectively in line with modern realities of litigation and the expectations of the Australian community.  A number of high-profile cases concerning the law on bias have received attention in recent years, and one is currently before the High Court.  Ensuring that the law works effectively is important for judges, lawyers, and litigants. In this context, the ALRC has been asked to consider the laws relating to impartiality and bias.

The ALRC’s Consultation Paper seeks views on whether the law on actual and apprehended bias — and procedures associated with it — could be enhanced by reform, clarification, or greater transparency. These include greater clarity about the rules and procedures (Proposal 2, Proposal 3), possible changes to the self-disqualification procedure (Proposal 6, Question 7, Proposal 8, Question 9), and clarification around situations requiring recusal (Question 4, Proposal 10).

In addition, consideration of the areas where the law falls short suggests that the law on bias will never be sufficient to maintain public confidence in judicial impartiality on its own. Preliminary consultations and research suggest that some litigants do perceive bias in their cases, and that other institutional structures must work effectively to complement the operation of the bias rule. Many of these are already in place and could be better communicated (Proposal 5), but stakeholders have suggested some could be enhanced.  The ALRC seeks views on a number of key areas that were prominent in preliminary consultations — among them transparent appointments procedures (Proposal 14), targeted judicial education (Proposal 17, Proposal 18, Question 19), and the collection of data (Proposal 22, Proposal 23, Question 24, Question 25).

The federal judiciary has an incredibly difficult job — working long hours addressing often stressful and complex cases. Judges are overwhelmingly committed to being — and appearing to be — impartial. The ALRC’s proposals and questions are therefore aimed at providing the most supportive environment to promote that impartiality and public confidence in it.

Find out more about making a submission so we can hear your views.

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[1] CNY17 v Minister for Immigration and Border Protection (2019) 375 ALR 47 [53] (Nettle and Gordon JJ), citing Webb v The Queen (1994) 181 CLR 41, 53 (Mason CJ and McHugh J).

The ALRC was asked to consider the laws on impartiality and bias as they relate to the federal judiciary.  This series of articles highlights the ALRC’s preliminary views presented in the Consultation Paper, supported by a set of background papers that provide a high-level overview of key principles and research on Inquiry-related topics. Submission were invited in response to 25 questions and proposals relating to the law on impartiality and bias.

• Spotlight On: The Inquiry’s Approach
• Spotlight On: Who Judges Whether a Judge is Biased?
• Spotlight On: The Judge, the Public, and the Test for Apprehended Bias
• Spotlight On: Cognitive Biases, Social Biases, and the Law

The Judicial Impartiality Consultation Paper was released on 30 April 2021. Submissions closed on 30 June 2021.

The Judicial Impartiality Consultation Paper was released on 30 April 2021.

Submissions on its questions and reform proposals closed on 30 June 2021.

Public submissions are available on the ALRC website.