Impartiality from both sides of the Bench

On Monday 19 July 2021, the Australian Law Reform Commission co-hosted a seminar with Wolters Kluwer to explore different viewpoints on judicial impartiality.

Attendees were treated to an impressive panel including:

• The Honourable Justice Middleton, Federal Court of Australia and ALRC Part-Time Commissioner (Chair)
• The Honourable Chief Justice William Alstergren, Chief Justice of the Family Court of Australia and Chief Judge, Federal Circuit Court of Australia
• Minal Vohra SC, Barrister
• George Selvanera, Acting Chief Executive Officer, Victorian Aboriginal Legal Service
• Professor Matthew Groves, Deakin University

The ALRC would also like to acknowledge and thank lawyer and human rights activist Nyadol Nyuon, who was to appear on the panel but had to withdraw due to unavoidable commitments complicated by the lockdown in Melbourne.

View the webinar recording (via CCH Learning platform*).

From the bench, our Chair, the Honourable Justice Middleton, framed the webinar in the context of the ALRC Judicial Impartiality Inquiry. As part of his introduction, he referred to survey research the ALRC is carrying out to better understand the views of the public, judges, members of the profession, and court users, and gave a sneak peek into some preliminary results from the ALRC’s judicial officer survey. He particularly noted that judges are comfortable using the test, but that a majority think more guidance would be helpful.

Justice Middleton then discussed his own experience of approaching applications for bias and noted that that he has generally faced two categories: applications from litigants arising from the fact the judge previously made a ruling against them; and applications raising the other general categories of apprehended bias. He noted that it is important as a judge to remember that it is difficult for counsel to raise these issues and they have to be considered an application made in good faith and dealt with on their merits. More broadly, he noted the importance of recognising that – even as judges – people bring their own perspective when they are deciding conflicting versions of facts and are likely to see events from the perspective that fits their own beliefs and experience.   

The Honourable Chief Justice William Alstergren followed, noting that cases of apprehended or actual bias are critical to litigants’ faith in the court system itself and in access to justice. Chief Justice Alstergren agreed that there was a need for clear procedures for such applications and a consistent approach across a Commonwealth court.  However he noted that – particularly in very busy courts like the Family Court and Federal Circuit Court – it is important to balance the need for a fair and transparent hearing with the need for strict case management.  He stressed that jurisdictions such as family law can require active, or even robust, case management that might give rise to what might be described as an apprehension of bias where the applicant does not understand the strict case management role that the judge has to play. The authorities have also emphasized the importance of dialogue between the bench and the bar in modern litigation. It would therefore not be practical to have an automatic system of referral of bias applications to a duty judge, although it is important that judges have the ability to refer bias applications to another judge in certain cases.

The Chief Justice’s insights were followed by the perspective of Minal Vohra SC. Ms Vohra described the challenges of having to make an application for a judge to disqualify themselves during a trial. She noted a “sinking feeling” at the prospect of having to make an application as it can be embarrassing if counsel has to impugn the way the judge is doing their job, in their own courtroom. She emphasized the difficult ethical issues that bringing, and responding to, such applications can raise. , Ms Vohra suggested that a practice note setting out how bias applications should be made may be useful for parties, their counsel, and the bench. Such a Practice Note could, for example, allow parties to access video recordings of the relevant part of proceedings, and make provision for different counsel to appear to make the application for recusal.

Acting Chief Executive Officer of the Victorian Aboriginal Legal Service, George Selvanera, gave attendees a sense of the wider policy context from the perspective of Aboriginal peoples in Victoria. Mr Selvanera observed that Aboriginal people come to a courtroom with a unique perspective on law and policing, which has been shaped by their own, their family’s, and their community’s experience, and the violent colonial history on which today’s legal system was founded. He noted that prejudice and discrimination may impact judicial decision-making – for example, stereotypes that may be held unconsciously may impact decisions such as judgment about a child’s best interests, or orders in relation to the impact discrimination might have had. He noted that the courts need to consider what the Aboriginal person’s experience is, and to recognise both the trauma of a colonial past and its ensuing challenges. Given the Court process is one that starts from fear and alienation, Mr Selverana called for culturally safe processes to increase the confidence of Aboriginal peoples participating and help overcome implicit judicial bias. Mr Selvanera pointed to the example of Koori Courts in the criminal law sphere, which include the presence of an elder and other community members to help facilitate sentencing conversations, and Aboriginal community justice reports, as two ways of building confidence in justice processes and combatting implicit biases within them. Mr Selvanera said that at a minimum judges should be exposed to mandatory cultural awareness training, but that other steps need to be taken provide culturally safe legal and judicial processes.

Finally, we heard from Professor Matthew Groves from Deakin Law School. Professor Groves noted the distinction between overbearing judicial behavior which gives rise to a denial of natural justice, and bias which is the expression of a lack of impartiality. Professor Groves also discussed how the outcomes of recusal applications will always be uncertain in bias cases because people perceive things differently. Professor Groves echoed Minal Vohra SC to say that the recent shift to the Ebner test is quite awkward. But, he also suggested the value of the test is that it has elasticity and reminds judges they need to step outside themselves when making decisions. Interestingly, the research shows judges can struggle with this more than is commonly believed.  Professor Groves noted that even if a case is referred to another judge, they will be subject to these uncertainties too. But, he suggested that the plain English explanations of how the test is applied, as are often found in judgments concerning applications brought by self-represented litigants at trial level, remove as much uncertainty as is possible in the test.

Our audience submitted interesting questions to our panel including:

• Whether the doctrine of waiver is appropriate in cases of bias arising from in-court conduct?
• Whether a barrister is obliged to raise a bias issue even if it favoured the client?
• How should practitioners and judges deal with the issue of close friendships between judges and members of the profession?
• Is there a potential role for a future Federal Judicial Commission in responding to litigant concerns about bias?
• Would having greater access to the workings of a court through remote hearings lead to better understanding of how judges work?

In summary, Justice Middleton thanked the speakers and drew an informative session to a close.  The next progress points for this Inquiry are the judgment of the High Court of Australia in Charisteas v Charisteas & Ors (P6/2021) and the publication of the final report. Watch this space.

Read more about the ALRC Judicial Impartiality Inquiry on our website and join our mailing list to stay up-to-date.

*The recording and transcript are available via the CCH Learning Platform. Registration is required to view.