Who Judges whether a Judge is Biased?

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.

Spotlight On: Proposals and Questions

View the full list of ALRC proposals and questions: Judicial Impartiality: Consultation Paper (CP 1, 2021)

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.

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?

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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).