The Government has committed to implementing all three recommendations made to it in Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report 138)
Any person before a court has the fundamental right to a hearing by a judge who is independent and impartial. In Australia, judicial independence and impartiality are seen as fundamental to the common law system of adversarial trial, to the exercise of judicial power under the Australian Constitution, and to upholding public confidence in the administration of justice. Ensuring impartiality also promotes the important values of treating parties to litigation with equal respect and dignity. The ALRC has been asked to undertake a review of the laws relating to impartiality and bias as they apply to the federal judiciary. The federal judiciary is comprised of four Courts: the High Court of Australia, the Federal Court of Australia and, within the Federal Circuit and Family Court of Australia (FCFCOA), the two courts that were previously known as the Family Court of Australia (Division 1 of the FCFCOA) and the Federal Circuit Court of Australia (Division 2 of the FCFCOA).
Tied to this, the rule against bias is one of the two pillars of natural justice. Australian courts have long recognised that “[t]he 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”.
In Australia, including in relation to the federal judiciary, the law on bias is predominantly found in common law. Two different types of bias may be alleged: actual or apprehended, reflecting the imperative that justice must both be done, and be seen to be done. A claim of actual bias requires proof that a decision-maker in fact approached the issues with a closed mind or had prejudged them such that he or she was “so committed to a particular outcome that he or she will not alter that outcome, regardless of what evidence or arguments are presented”. On the other hand, the test for apprehended bias considers “whether, in all the circumstances, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question”.
The Inquiry related to the law as it applies to judges in the High Court, Federal Court, Family Court and Federal Circuit Court.
The Terms of Reference for this Inquiry directed the ALRC to consider whether:
- the 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.
The Inquiry considered whether, and if so what, reforms to the laws on judicial impartiality and bias may be necessary or desirable.
In undertaking the Inquiry, the ALRC consulted widely with the legal profession, courts, tribunals and the broader community. A consultation paper was released in April 2021. The closing date for submissions in response to the Consultation Paper was 30 June 2021.
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