The Australian Law Reform Commission report, Without Fear or Favour: Judicial Impartiality and the Law on Bias, was tabled in Parliament yesterday (2 August), following that commission’s inquiry into judicial impartiality and bias, and whether they are sufficient to maintain public confidence in the administration of justice.

The inquiry was initiated by former federal attorney-general Christian Porter and was prompted by a decision of a Full Court of the Family Court of Australia in Charisteas v Charisteas concerning personal contact between the trial judge and counsel for one of the parties. During the ALRC inquiry, the decision was overturned by the High Court, which clarified several issues relating to the law on bias.

Over the course of the inquiry conducted by ALRC, over 2,000 people through surveys and consultations, including litigants and other court users, current and former members of the judiciary and tribunals, the legal profession, non-profit legal services, community groups, and academics.

The ALRC’s report produced 14 recommendations, including, but not limited to, the need for Commonwealth courts to develop and publish guidelines on the process and principles of judicial disqualification; the establishment of procedures for the discretionary transfer of applications for disqualification in cases before a single judge; more transparent processes for appointing federal judicial officers on merit; annual reporting on diversity statistics in the federal judiciary; structured and transparent approaches to training and ongoing professional development of judges; and the creation of accessible public resources that explain the mechanisms in place to ensure judicial accountability.

A new federal judicial commission?

One of the recommendations made by the ALRC was that the federal government should establish a federal judicial commission — a recommendation that was made in response to “significant stakeholder concerns”, chapter 5 of the report noted, that the existing mechanisms for raising allegations of actual and apprehended bias, and deciding those allegations, are “not sufficient to maintain public confidence in the administration of justice”.

“The particular difficulties associated with raising those issues with the judge and court concerned, and the crucial importance of perceptions of impartiality for confidence in the administration of justice, mean that additional safeguards are required,” the report said.

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“A federal judicial commission would provide a transparent and independent mechanism to consider litigants’, lawyers’, and witnesses’ concerns about issues of judicial behaviour or impairment giving rise to an apprehension of bias. The fact that a judicial commission would be independent from the courts would, to an extent, address perceived conflicts of interest in the current system under which the judge or court the subject of a bias allegation is required to consider and respond to the allegation.”

There are constitutional limits on the extent to which a federal judicial commission could be invested with disciplinary and removal powers, the report ceded.

As such, and in light of this, many stakeholders considered that the model currently adopted in a number of Australian jurisdictions to be appropriate.

“Under this model, judicial commissions receive and investigate complaints, and refer those complaints to the Attorney-General if the commission considers removal of the judge from office,” the report detailed.

'Significant changes [we have] long been advocating for'

Responding to the report and its recommendations, Law Council of Australia president Tass Liveris said that the ALRC has called for some "significant changes that the Law Council has long been advocating for".

“In particular, we support the ALRC’s call for the establishment of a Federal Judicial Commission. Since 2006, the Law Council has advocated for the creation of a standalone Federal Judicial Commission to provide a clear and structured framework for responding to complaints directed to the judiciary," he said.

“As recommended by the ALRC, this body would also play a critical role in supporting judicial impartiality and public confidence in the administration of justice.”

The ALRC report also noted that establishment of such a commission would, Mr Liveris continued, be a significant reform which requires its own policy development process, including further broad consultation.

"The Law Council calls for the Government to support the establishment of a Federal Judicial Commission, to establish a consultation process regarding its design, and to ensure that it is adequately resourced to enable it to carry out its functions efficiently and effectively," he said.

"The Law Council also notes the ALRC’s recommendations relating to improved procedures and guidance to assist federal courts and parties to address potential bias issues as they arise. This is an important step in fostering confidence in the independence of the judiciary. It is critical that there be clarity and transparency on procedures relating to bias, to assure court users that such issues can be dealt with in a fair and effective manner."

“The Law Council also strongly supports the report’s recommendations aimed at increasing transparency in the judicial appointment process, promoting diversity in the judiciary and improving cultural competency."

Moving forward

In a statement, Attorney-General Mark Dreyfus QC MP said that the Albanese government will “consult widely” about those recommendations and respond in due course.

“The Albanese government is already acting to restore integrity in the judicial appointments process by returning to a more transparent, merit-based approach. I am a longstanding supporter of a federal judicial commission to deal with complaints against serving judges,” the A-G proclaimed.

“I thank the ALRC for its hard work and commitment in delivering the final report, and extend thanks to the ALRC’s advisory committee and all those who contributed to the inquiry.”

A-G Dreyfus also noted: “I am pleased the ALRC found that, in general, the Australian public has a high level of confidence in Australian judges and courts and the Australian judiciary is highly respected internationally and that the substantive law on actual or apprehended bias does not require amendment.”

ALRC president Justice Sarah Derrington added: “More could be done to increase certainty and visibility of existing procedures relating to bias, to understand and respond to litigants’ experiences and concerns, and to address the potential for institutional biases.

“The recommendations support transparency, equality, integrity, and fairness to provide a robust framework for judicial impartiality and public confidence in it.”