Review of Judicial Impartiality

The ALRC has been asked to undertake a review of the laws relating to impartiality and bias as they apply to the federal judiciary.  

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.

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 Terms of Reference for this Inquiry direct the ALRC to consider in particular:

  • whether the law about actual or apprehended bias relating to judicial decision-making is appropriate and sufficient to maintain public confidence in the administration of justice;
  • whether the law provides enough clarity to decision-makers, the legal profession and the community about how to manage potential conflicts and perceptions of partiality; and
  • whether current mechanisms for raising allegations of actual or apprehended bias, and deciding those allegations, are sufficient and appropriate (including in relation to review and appeal mechanisms).

The Inquiry will consider 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 will consult widely with the legal profession, courts, tribunals and the broader community. A consultation paper will be released in April 2021, and a formal call for submissions will be made at that time.

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