On Tuesday 2 March 2020 the Australian Law Reform Commission (ALRC) co-hosted a panel seminar with the Australian Academy of Law at the Federal Court of Australia in Sydney. The expert panel explored issues of public confidence, apprehended bias, and the modern federal judiciary. The ‘sold out’ event provided a conducive format for discussion relevant to the ALRC’s current review of judicial impartiality. Insightful presentations were complemented by questions from an international online and in-person viewing audience facilitating thoughtful considerations and lively conversation.
The Honourable Alan Robertson SC, President of the Australian Academy of Law, welcomed guests and thanked Chief Justice Allsop AO for the use of the Federal Court as the evening’s venue.
Justice SC Derrington, President of the ALRC, welcomed notable guests and introduced the panellists. She framed the terms of reference of the ALRC Inquiry – noting particularly three questions:
- Whether the law of actual and apprehended bias is appropriate and sufficient to maintain public confidence in the administration of justice;
- Whether the law provides sufficient clarity to decision makers, the profession, and the community about how to manage potential conflicts; and
- Whether the mechanisms for raising and deciding allegations of bias are sufficient and appropriate.
Justice Derrington also noted the need to consider other matters relating to the terms of reference, including: the potential for systemic bias such as unconscious bias; judicial conduct in the court room that leads to perceptions of bias; and other measures which might enhance public confidence in judicial impartiality such as the appointments process, judicial education, and complaints mechanisms.
Tony McAvoy SC from the NSW Bar spoke about the fair-minded observer and the difficulty in knowing what they are “supposed to know” to make a decision. He then went on to suggest that the difficulty is really a flexibility inherent in the test which is essential to ensuring the fair-minded observer can be a test in which the public can have confidence, in the variety of circumstances to which it is applied.
Justice Michael Lee of the Federal Court of Australia took the audience through three of his recent cases to illustrate the impact of disqualification applications on judges. He noted the tension that arises from modern case management in the federal jurisdiction and the increasingly common resolutions of different cases with similar substrata of facts, as against efficiency and an understanding that disqualification should not occur unless substantial grounds are made out, needs more clarity to resolve.
Professor Gabrielle Appleby of the University of New South Wales critiqued the self-recusal process by reference to behavioural psychological studies which put into doubt whether judicial officers are capable of assessing their own situation from the perspective of the fair-minded lay observer. These studies show how ‘bias-blind spots’ tend to minimise our perception of our own bias, but exaggerate our perception of others’. So, in applying the test of the fair-minded lay observer, judicial officers are dealing with a double-blind spot. To balance efficiency against issues of cognitive bias, Professor Appleby called for creative solutions such as a second judge being brought in at the request of the challenged judge; or an expedited appeals process from the decision of the challenged judge.
Judge Matthew Myers AM of the Federal Circuit Court of Australia engaged the audience in a demonstration of unconscious bias by narrating a thought provoking scenario to reflect on. Judge Myers discussed a range of different unconscious biases including similarity bias; attribution bias; attractiveness bias; racial bias; and cultural bias. In the present context, he discussed how in his own cases, unconscious biases had been revealed to him and how it is inherently unexpected when they are. Judge Myers then made a broader call for the audience to reflect on the lack of diversity within the federal judiciary.
Chris Merritt, journalist and Vice-President of the Rule of Law Institute of Australia, spoke about the role of the media in enhancing public confidence in the judiciary and criticised the absence of a federal judicial commission which could address both issues of bias, and judicial welfare. A federal judicial commission could address judicial conduct before the need for appeals and retrials, and provide mentoring and education to judicial officers.
In summation, the Honourable Alan Robertson SC thanked the speakers and added comments about the need for caution in any codification, and that increased knowledge about the bias rule and principles would lead to trust and public confidence.
What followed was an interactive Q&A session between the audience and the panel with the online audience able to send in questions by email. Panellists were asked about many aspects of the discussion including:
- the effect of previous adverse credit findings on the apprehension of impartiality;
- times when they themselves had unconscious biases revealed to them;
- personal relationships within the profession and the perception it creates;
- whether awareness of unconscious bias enables judges to ameliorate the effects;
- whether the waiver rule needs to be reconsidered where judicial conduct is too robust on the bench;
- the issue of costs in bias applications; and
- the self-recusal process and more.
It was an insightful and informative way to conclude a rich discussion.
The recording of the seminar is now available for viewing.