The Fair-Minded Observer and its Critics (JI7)

This paper considers the test used to decide when a judge will be disqualified from hearing a case because there is a risk that people might think they might be biased. The notion of judicial impartiality is so central to confidence in the administration of justice that the law has developed this mechanism — disqualification for apprehended bias — to avoid even the appearance of biased judicial decision-making. The paper considers the history of the test, critiques of the test, and reforms that have been proposed in academic commentary.  It also briefly summarises alternative approaches used to identify situations where recusal is, and is not, required, in a number of other jurisdictions and specialised areas of practice.

This is one in a series of background papers produced by the Australian Law Reform Commission as part of its Review of Judicial Impartiality.

In April 2021, the ALRC will publish a Consultation Paper containing questions and draft proposals for public comment. A formal call for submissions will be made on its release. In addition, feedback on the background papers is welcome at any time by email to