11.05.2021
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.
Spotlight On: Proposals and QuestionsView the full list of ALRC proposals and questions: Judicial Impartiality: Consultation Paper (CP 1, 2021) |
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2 |
Each Commonwealth court should promulgate a Practice Direction or Practice Note setting out the procedures for making and determining applications for disqualification of a judge on the grounds of actual or apprehended bias, and procedures for review or appeal. |
3 |
Each Commonwealth court should develop and publish an accessible guide to recusal and disqualification (‘Guide’) for members of the public. The Guide should be easy to understand, be informed by case law and the Guide to Judicial Conduct, and refer to any applicable Rules of Court or Practice Directions/Practice Notes. In addition to summarising procedures, the Guide should include a description of (i) circumstances that will always or almost always give rise to apprehended bias, and (ii) circumstances that will never or almost never give rise to apprehended bias. |
4 |
Would there be benefit in a judicial officer-led project to identify more comprehensively circumstances in which apprehended bias will and will not arise? |
5 |
The Commonwealth courts should (in coordination with each other) publicise on their respective websites the processes and structures in place to support the independence and impartiality of judges and mechanisms to ensure judicial accountability. |
6 |
The Federal Circuit Court of Australia, the Family Court of Australia, and the Federal Court of Australia should amend their rules of court to require a judge sitting alone to transfer certain applications for the sitting judge’s disqualification to a duty judge for determination. Options for reform include requiring transfer: Option A) when the application raises specific issues or alleges specified types of actual or apprehended bias; or Option B) when the sitting judge considers the application is reasonably arguable; or Option C) when the sitting judge considers it appropriate. |
7 |
Should Commonwealth courts formalise the availability of an interlocutory appeal procedure for applications relating to bias before a single judge court? |
8 |
The Federal Court of Australia, the Family Court of Australia, and the High Court of Australia should promulgate a Practice Direction or Practice Note to provide that decisions on applications for disqualification made in relation to a judge on a multi-member court should be determined by the court as constituted. |
9 |
Should Commonwealth courts adopt additional systems or practices to screen cases for potential issues of bias at the time cases are allocated? |
10 |
The Council of Chief Justices of Australia and New Zealand and the Law Council of Australia and its constituent bodies should coordinate reviews of Part 4.3 of the Guide to Judicial Conduct, and the
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14 |
The Australian Government should commit to a more transparent process for appointing federal judicial officers that involves a call for expressions of interest, publication of criteria for appointment, and explicitly aims for a suitably-qualified pool of candidates who reflect the diversity of the community. |
17 |
Each Commonwealth court should commit to providing all judges newly-appointed to judicial office with the opportunity to take part in a court-specific orientation program upon appointment, as specified under the National Standard for Professional Development for Australian Judicial Officers, and report on the orientation program in their Annual Report. |
18 |
Each Commonwealth court (excluding the High Court) should circulate annually a list of core judicial education courses or other training that judges are encouraged to attend at specified stages of their judicial career, and ensure sufficient time is set aside for judges to attend them. Core courses in the early stages of every judicial career should comprehensively cover (i) the psychology of decision-making, (ii) diversity, intersectionality, and comprehensive cultural competency, and, specifically (iii) cultural competency in relation to Aboriginal and Torres Strait Islander peoples. |
19 |
What more should be done to map, coordinate, monitor, and develop ongoing judicial education programs in relation to cultural competency relevant to the federal judiciary, and to ensure that the specific needs of each Commonwealth court are met? Which bodies should be involved in this process? |
22 |
Commonwealth courts should collect and publish aggregated data on reallocation of cases for issues relating to potential bias. |
23 |
Commonwealth courts should introduce methodologically sound processes to seek structured feedback from court users, including litigants and practitioners, about their satisfaction with the court process, in a way that allows any concerns about experiences of a lack of judicial impartiality to be raised. |
24 |
Are the measures that are already in place in Commonwealth courts to collect feedback from, and measure satisfaction of, court users sufficient and appropriate? |
25 |
What other data relevant to judicial impartiality and bias (if any) should the Commonwealth courts, or other bodies, collect, and for what purposes? |
[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).