03.12.2020
The Australian Law Reform Commission (ALRC) has been asked to review the laws relating to impartiality and bias as they apply to the federal judiciary in Australia. These laws seek to ensure that justice is both done and seen to be done in Commonwealth courts and tribunals. The Terms of Reference ask the ALRC to consider, among other things,
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…
Confidence in the courts and public institutions generally is an important hallmark of effective democratic governance. As former Chief Justice of the High Court the Hon Murray Gleeson AC QC has said:
The general acceptance of judicial decisions, by citizens and by governments, which is essential for peace, welfare and good government of the community, rests, not upon coercion, but upon public confidence.
To emphasize the significance of public confidence in institutions, Gleeson pointed to the decision of Bush v. Gore, in which the US Supreme Court settled a recount dispute following the 2000 American presidential election, ultimately handing the contested victory to Bush. Twenty years later, however, events surrounding the most recent US election warn against any assumption that citizens (or governments, for that matter) will be so inclined to peaceably accept the authority of public institutions.
In Australia, headlines report declining levels of trust over time in public institutions such as the federal government, media, and banks—reflecting a global trend. However, surveys suggest that Australians value the work of courts and judicial officers highly, and that judges may in fact be trusted more than many other occupations.1 Results from the annual Australian Survey of Social Attitudes (AuSSA), for example, suggest that confidence in the courts and the legal system generally has remained fairly constant over the past decade.
Source: Ann Evans et al, ‘Australian Survey of Social Attitudes, 2018’ (ADA Dataverse, 2020) <http://dx.doi.org/10.26193/1U0HNI>; Ann Evans, ‘Australian Survey of Social Attitudes, 2009’ (ADA Dataverse, 2017) <http://dx.doi.org/10.4225/87/IH68HQ>.
General questions about levels of confidence in ‘courts’ or ‘the legal system’ can, however, obscure more complex views and experiences. Australian socio-legal researchers Professors Sharyn Roach Anleu and Kathy Mack have pointed out that direct experience with the courts is limited among the Australian public, and public opinion surveys can ‘create the phenomena they seek to document: members of the public may not have pre-existing, deeply held views about social or legal institutions, but form opinions when responding to particular survey questions’.2 Reactions to issues concerning the courts that attract a high degree of media attention—recently, including issues of alleged bias of judges—can be quite different to reactions on issues that are not subject to such scrutiny. This kind of nuance is missed in broad questions about confidence in institutions as a whole.
There is already significant literature on the relationship between judicial decisions, public attitudes, public confidence, and the role courts play in a democracy. Against this backdrop, it is useful to return to a question posed by Gleeson: what sustains public confidence in the administration of justice and what diminishes it? And for the purposes of this Inquiry, what roles do the law on judicial impartiality and bias, and public perceptions of bias, play? At the ALRC, we are committed to evidence-based law reform. Careful use of empirical studies can help us to address these questions, and to develop informed recommendations for reform where it is required.
Perceptions of bias in the family law system
This is by no means the first time the ALRC has sought to understand public perceptions of the legal system. For example, as part of our previous Family Law Inquiry, we established a confidential online portal called Tell Us Your Story, where members of the public were encouraged to anonymously share personal stories of their experiences with the family law system. While our inquiry process generally prioritizes public consultation and openly-published submissions, the ALRC offered this confidential option due to the sensitivity of many family law matters. Additionally, we anticipated that some individuals with personal experience of the system may be discouraged from making a public submission out of fear of breaching s 121(1) of the Family Law Act 1975 (Cth), which prohibits the publication of details of family law proceedings.
We received 732 individual contributions via this portal, covering a broad and confronting range of personal experiences with the family law system. While the contributions are held in confidence by the ALRC and cannot be published, these stories helped to inform our understanding of the real world impacts of the existing family law system and associated institutions. The issues raised in the stories directed our investigation in terms of understanding the behavior of various actors, the interactions between institutions, and the complex or unhelpful incentives or constraints that may have influenced outcomes for families. Our high-level summary of the data is available online.
Of the 732 contributions, 504 included a complaint relating to the Family Court of Australia system and procedures. 236 contributions involved a complaint specifically in relation to a judicial officer.3 A number of contributors indicated that, in their view, either the judicial officer or the Family Court system generally had been biased. Significantly, while a number of contributors considered that the system was biased against women, others considered that it was instead biased against men. These mixed views demonstrate the importance of addressing not only actual or apprehended bias in specific cases, but equally the perception of bias among the community.
A number of contributors considered that there was a general lack of awareness by judges of issues relating to family violence, trauma, and mental health issues. Others complained that the court system was not equipped to deal appropriately with Indigenous families, families with diverse cultural backgrounds, and families with complex needs (such as mental illness, disability, or substance abuse). These experiences may also contribute to the perception of bias, to the extent that some parties feel they are not supported to participate in proceedings on an equal footing.
Some contributors perceived that judges had been biased with respect to gender, race, or self-representation. Some also expressed frustration that there is no independent mechanism for making complaints about federal judicial officers, and a perception that judges are not appropriately investigated when complaints are made.
Limitations of the family law data
As the ALRC noted when it published a summary of the family law data in 2019, there were a number of important limitations. First, because many of the contributions were made anonymously, there was no possibility of investigating or ascertaining the veracity of claims. Secondly, the sampling was not controlled or targeted to get a representative sample of family law litigants. The submission portal was made available on the ALRC website, and contributions were invited by all members of the public. As a result, the data is affected by ‘self-selection bias’, in that individuals with more extreme or grievous experiences will be more likely to contribute, causing an underrepresentation of participants with positive or unremarkable experiences.
With these limitations in mind, we can nonetheless draw some inferences from the data. For example, we can say with reasonable confidence that perceptions of bias in the family law system are not uncommon. However, we don’t know how often this is the case, or whether (or how often) those perceptions of bias correspond with what would be considered actual (or apprehended) bias by a judicial officer under the current law.
On the hunt for more and better data
While the family law data provides useful background for our Inquiry into Judicial Impartiality, we will be examining these issues in much greater detail. This Inquiry concerns all areas of federal judicial activity, not just family law. As part of this new Inquiry, we have been exploring the significant amount of research that has already been conducted in relation to judicial impartiality and public confidence across all areas of Australian law, and will be commissioning further targeted empirical studies to better inform our research and ultimately any recommendations for reform.
Other aspects of the Terms of Reference direct the ALRC to consider whether the existing law provides sufficient clarity to decision-makers, the legal profession, and the community about how to manage potential conflicts and perceptions of partiality, and whether the current mechanisms for raising allegations of actual or apprehended bias are sufficient and appropriate. These questions cannot be answered by reference to public perceptions alone, and will require significant consultation among the judiciary, the legal profession, academia and other stakeholders. The ALRC will be seeking broad and diverse engagement with the issues this Inquiry raises, including by calling for written submissions from the public after publishing a consultation paper in April 2021.
Nonetheless, the rules on impartiality and bias are seen as crucial to maintaining public confidence in the judiciary, and are framed with that in mind. By considering stakeholder views alongside concrete data about how prevalent perceptions of bias are among the public and litigants, the reasons for those perceptions, and how they relate to public confidence in the administration of justice, we hope to better understand how the law on actual and apprehended bias operates in practice, and whether (and if so how) it might be improved.
[1] For example, a 2018 quantitative survey conducted by UC-IGPA and Museum of Australian Democracy with the Social Research Institute at Ipsos of a representative sample of 1,021 Australians found that 55 per cent of people trusted judges – higher than the level of trust in Public Servants (38 per cent), business people (31 per cent), journalists (28 per cent), trade unionists (26 per cent) and MPs (21 per cent), and second only to the trust reported in GPs (81 per cent). These figures represented responses indicating they ‘trust them a little bit’, or ‘very much’: Democracy 2025 (2018), Trust and Democracy in Australia – Democratic decline and renewal, 21.
[2] Sharyn Roach Anleu and Kathy Mack, ‘The Work of the Australian Judiciary: Public and Judicial Attitudes’ (2010) 20(1) Journal of Judicial Administration 3, 7.
[3] Some or all of these overlap with the 504 that made a complaint regarding the Family Court system—these totals are not exclusive.