Without Fear or Favour: the ALRC’s new report on judicial impartiality and the law on bias

Dr William Isdale and Sarah Fulton

In its just-released report, Without Fear or Favour: Judicial Impartiality and the Law on Bias, the Australian Law Reform Commission has outlined 14 recommendations which, if adopted, will buttress impartial decision-making and help maintain the legitimacy of the federal judiciary in a changing world. This article outlines the context for the Inquiry, consultation views and empirical data considered by the ALRC, and summarises a number of the report’s key recommendations. These include:

• clarification of procedures for disqualification of judges;
• new procedures for the discretionary transfer of bias applications and appeal of such decisions;
• the establishment of a federal judicial commission; and
• strengthened institutional supports for judicial impartiality, including new processes for the appointment and training of judicial officers and better understanding the experiences of court users.

Judicial legitimacy is often reflected in the broader societal and governmental support judges and courts enjoy, which depends on trust that runs deeper than any views formed about the outcome of a particular case. However, maintenance of that legitimacy depends crucially on the perception that courts adjudicate disputes impartially. The recommendations, if implemented, will meaningfully enhance both the actuality and perception of impartial adjudication – and thereby serve to sustain and enhance the legitimacy of our federal justice system and the quality of its decision-making. 

Context for the ALRC’s Inquiry

A fundamental tenet of our justice system is the impartial adjudication of disputes. Partiality is anathema to the concept of justice and a perception of partiality is likely to impair public confidence in the courts, undermining the rule of law. As Lord Denning MR observed, ‘[j]ustice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The judge was biased”’.

The impetus for the ALRC’s Inquiry was a judgment of a Full Court of the Family Court in Charisteas v Charisteas (2020) 60 Fam LR 48, which came in close proximity to a number of other important, and sometimes high-profile, judgments of the Commonwealth courts concerning the law on bias. These included judgments related to:

• judicial conduct in court;
• the extent to which pursuing efficiency in litigation can properly justify potential exposure prejudicial information in related proceedings; and
• how negative findings of credibility by a judge in one case may impact the appearance of impartiality in later cases involving the same witnesses.

The judgment in Charisteas followed a protracted family law dispute filed in 2006. After a final judgment was delivered in 2019, solicitors for the husband became aware of gossip that the wife’s counsel and the judge had ‘engaged outside of court in a manner that was inconsistent with [counsel’s] obligations and those of the Judge’ during the proceedings. In correspondence, the wife’s counsel conceded that she had had personal contact with the judge on a number of occasions during the course of the proceedings, including meeting for coffee, and the exchange of text messages. Despite this, the Full Court of the Family Court concluded that this contact did not give rise to a reasonable apprehension of bias.

Subsequently (and after the ALRC had been given terms of reference in the Inquiry), the High Court unanimously overturned this judgment, and found that the conduct in question did give rise to a reasonable apprehension of bias. The High Court applied the test laid down in the existing case law, which asks whether a fair-minded lay observer might reasonably think that the judge might not bring an impartial mind to the resolution of the dispute (the Ebner test).

Terms of reference

In the context of Charisteas, and these other high-profile and significant decisions, the Commonwealth Attorney-General issued the ALRC with terms of reference to conduct the first comprehensive review in Australia of laws relating to judicial impartiality and bias.

The reference asked the ALRC to inquire into ‘whether, and if so what, reforms to the laws relating to impartiality and bias as they apply to the federal judiciary are necessary or desirable’. In particular, the terms of reference asked the ALRC to consider whether:

• the existing law about actual or apprehended bias relating to judicial decision-making is sufficient and appropriate to maintain public confidence in the administration of justice;
• the law provides clarity to decision-makers, the legal profession and the community about how to manage potential conflicts and perceptions of partiality; and
• the mechanisms for raising allegations of actual or apprehended bias, and deciding those allegations, are sufficient and appropriate.

As the terms of reference were limited to the federal judiciary, the focus on the Inquiry was the law as it applies to judges in the High Court, Federal Court, and Federal Circuit and Family Court.

Consultations and empirical research

In conducting its Inquiry, the ALRC had regard to extensive consultation and empirical data, including the results of four surveys and a comprehensive case review. Prior to the Inquiry, no studies had been carried out in Australia into how the law on bias is used and how the processes for raising and determining issues of bias are perceived. In order to better understand the views of principal stakeholders, the ALRC included questions in the Australian Survey of Social Attitudes (‘AuSSA’), and undertook surveys of Commonwealth judges, legal professionals, and court users, about their experiences, perceptions and views on potential reforms.

The ALRC’s consultations and survey data painted a generally positive picture about perceptions of impartiality and confidence in Australian courts and judges (not limited to the Federal judiciary). For example, the AuSSA revealed that trust in Australian courts in 2020 was the second highest out of the institutions measured, and the trend line revealed an increase in confidence over recent history. Feedback from court users was similar: of the 490 participants who had attended an Australian court in the past 10 years, 76% agreed or strongly agreed with the statement that they felt the way in which the most recent court proceedings they attended had been handled was fair. However, there were pockets of discontent: 8% of court users surveyed expressed ‘no confidence at all’ in courts and the legal system, and 17% expressed ‘very little confidence’.

The ALRC also sought the views of consultees and survey participants on potential reforms. Most stakeholders did not consider the law itself needed to be changed. However, there was a high level of support for improvements to procedures and institutional structures to support and safeguard impartiality. One key concern raised in consultations, and explored in detail in the Final Report, is the limited role the bias rule can play in addressing the potential impact of social and cultural factors on judicial decision-making at an institutional level.

Alongside this, the ALRC conducted a comprehensive review and analysis of all judgments in the Commonwealth courts referring to recusal and disqualification from 2015–21. This showed that — at least as recorded in written judgments — issues of conduct and prejudgment were by far the most frequently raised issues in relation to disqualification and recusal, and led to the highest number of disqualifications or recusals.

Overview of some of the ALRC’s recommendations

The ALRC concluded that the law itself — as currently reflected in the Ebner test — did not need to change. However, it agreed with stakeholders that a number of reforms should be made to clarify and improve the procedural and institutional structures that support judicial impartiality and public confidence in it.

For a full explanation of the 14 recommendations made in this regard see the Final Report and Summary Report. Below we focus on four areas of potential reform that will likely be of particular interest to readers.

Clarification of procedures for the disqualification of judges

The ALRC found there was a lack of clarity surrounding the procedures for the disqualification of judges, and differences in how courts approach applications for disqualification. The ALRC considered that visibility and transparency about the law and procedures could be improved through the creation of court-specific guidelines on judicial disqualification.

The publication of guidelines should make clear the processes by which claims of bias are resolved, and outline circumstances in which recusal likely would, or would not, be warranted. Such guidelines could also outline the structures and processes in place to support the impartiality of judges, thereby enhancing public and litigant confidence in them. The ALRC found that a useful model is currently provided by the Recusal Guidelines published by New Zealand courts (a by-product of a past New Zealand Law Reform Commission Inquiry).

Discretionary transfer of disqualification applications and decisions by multimember courts

The ALRC recommended the Federal Court and Federal Circuit and Family Court establish a new procedure for the discretionary transfer of applications for disqualification, where those cases are before a single judge. The new procedure should be accompanied by guidance about when transfer would, and would not, be appropriate (to be included in the guidance discussed above).

At present, applications for a judge to recuse herself or himself on the grounds of actual or apprehended bias are heard and determined by the judge whose actual or perceived impartiality is in question. A concern raised by stakeholders was that this had a ‘chilling effect’ on the willingness of parties to bring a disqualification application. As Sir Grant Hammond has observed, counsel (and self-represented litigants) are put ‘in an invidious position where they may entertain respectably well-grounded fears that the judge may become alienated against them’ if their application is unsuccessful.

The ALRC’s recommendation that transfer to another judge be discretionary is designed to balance the risk of the procedure being used as a tactical tool for ‘judge shopping’, or that it may result in unacceptable delay. It is also coupled with a recommendation that there be a streamlined appeals procedure for disqualification decisions, where those applications have not been transferred.

In addition, the ALRC recommended the Federal Court and Federal Circuit and Family Court should put in place new procedures for cases heard by more than one judge, such as appeals where three or five judges may sit. In such cases, the ALRC recommended that objections on bias grounds should be decided by the court as a whole, not the individual judge concerned.

 A federal judicial commission

The ALRC also recommended the Australian Government should establish a federal judicial commission, with complaints-handling and educative functions. The ALRC concluded that, given the bias rule’s inherent limitations, a body independent from the courts (though ultimately under judicial control) is a necessary complement to address issues of apprehended bias that have the potential to undermine public confidence in the judiciary. While the ALRC has not proposed a specific model, such a body could provide a number of benefits. For instance, in comparison to an appeal process, which may correct legal error in specific cases, a judicial commission can support judicial impartiality and the appearance of it going forward, including by helping to address underlying issues.

At present, apart from petitioning Parliament, an individual with a complaint about the conduct of a judge may make a complaint to a head of jurisdiction. Under powers now afforded by the Court Legislation Amendment (Judicial Complaints) Act 2012 (Cth), if the head of jurisdiction considers the complaint requires further consideration, she or he may consult with the judge concerned, refer it on for investigation, or refer it to Parliament if it raises matters that would warrant removal. However, stakeholders told the ALRC that the involvement of courts in considering the conduct of one of its judges gives rise to an inherent conflict of interest. Further, stakeholders like the Australian Bar Association considered that the current procedures ‘suffer from a lack of transparency, which undermines public confidence’.

Any proposed judicial commission would need to be independent and transparent, thereby enhancing public confidence. As Chief Justice Bathurst has observed:

The existence of an independent complaints channel and the transparency surrounding the number of complaints and how they were handled significantly enhances trust in the competency and integrity of the judiciary.

The ALRC considers such a Commission could have numerous functions, including complaints-handling, the collection of data on the source and nature of complaints, and a role in providing education and other forms of support to judicial officers, informed by its specialist knowledge.

Reforms to support institutional impartiality and support judges: appointment, training, and data

Finally, the ALRC has made a suite of recommendations addressing judicial appointments, judicial education, ethical guidance, the collection of feedback and data, and accessible information about the courts. These issues were identified through consultations as particularly important to address the limitations of the law in responding to perceived poor judicial conduct in court and the potential for social and cultural bias at an institutional level. Recommendations include:

• a more transparent process for the appointment of federal judicial officers, that at a minimum requires a call for expressions of interest, the publication of selection criteria, and a commitment to promoting diversity without compromising the principle of merit-based selection;
• the collection and reporting of statistics on judicial diversity;
• a more structured and transparent approach to training and ongoing professional development for judges;
• a structured and ongoing program of Aboriginal and Torres Strait Islander cross-cultural education led by Aboriginal and Torres Strait Islander people and organisations;
• the revision of the Guide to Judicial Conduct as it relates to judicial impartiality;
• the systematic collection of information about court users’ perceptions of procedural justice;
• the creation of a policy on the creation, development, and use of statistical analysis of judicial decision-making; and
• accessible public resources that better explain to the public how judicial impartiality is protected and promoted, and how judges are held accountable.