The Australian Law Reform Commission (ALRC) operates independently from the Australian Government to investigate, research and recommend reform to law topics selected by the Attorney-General of Australia. The ALRC are kind of like the Microsoft Editor for Australian legislation ; they provide recommendations so that identified defects and issues with current laws can be streamlined, are applicable to community standards, and remain consistent with agreed international obligations.
In December 2020, the ALRC released a background paper to provide a summary on ‘key aspects of the law on judicial bias as it relates to the Australian federal judiciary’.[1] This paper is to provide further clarity to stakeholders around regarding the ALRC Review of Judicial Impartiality.
So what is judicial impartiality?
Judicial impartiality is a foundational concept supporting the separation of powers. Enabling a judiciary who remains impartial from political influence keeps checks on the power held by the legislature, the executive and the judiciary themselves. According to Bottomley and Bronitt, the theory of separation of power is an ‘institutional device to maintain constitutionality in liberal societies’.[2]
Constitutionality is considered a component of the Rule of Law (which, if you’ve been paying attention to the news lately, is currently the hottest catch-phrase coming out of #auspol since ScoMo’s classic “I don’t hold a hose, mate”). The rule of law aligns with the theory of legal formalism, enabling the preservation between politics and law.[3]
Ok, but why is impartiality important?
Because ‘[t]here is probably no judicial attribute on which the community puts more weight than impartiality. It is the central theme of the judicial oath of office …’[4]
Fair hearings held before an impartial tribunal are recognised under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
Additionally, ‘[f]undamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal’.[5] Judicial impartiality goes hand-in-hand with the rule against bias. As stated in Webb, ‘[t]he public is entitled to expect that issues tried by … judges … should be decided … without bias’.[6] In essence ‘bias, whether actual or apprehended, connotes the absence of impartiality’.[7] Ensuring the existence of judicial impartiality reinforces the legitimacy of the judiciary and public confidence for the judiciary; ‘justice must not only be done, but must also be seen to be done’.[8]
The challenges facing Hennepin County in ensuring impartial jury selection in the trial of Derek Chauvin (who has been charged with second-degree murder and second-degree manslaughter of George Floyd) demonstrate a timely example of the critical importance of impartiality within all components of a justice system.
Do people not have confidence in the judiciary?
Look, this is a tough one, but the most succinct answer is “yeah, nah, sort of”.
The difficulty in providing a clear answer around public confidence is due to lack of precise data. According to Anleu and Mack, 46% of respondents to the Australian Survey of Social Attitudes (AuSSA) reported not very much confidence in the court and legal system and 22% expressed no confidence at all.[9]
The AUSSA 2007 survey, completed by 8, 133 adults across Australia, was commissioned by the Australian Institute of Criminology to include measures of confidence in police, criminal courts and prisons. With only 5% of respondents reporting any contact with a criminal court, Anleu and Mack believe that the data suggests that Australians may derive most of their information about courts and judges from sources such as print and electronic news and entertainment or what they are told about experiences of other people, rather than via their own direct experience or observation.[10]
The issue goes back to lack of precise data. The AuSSA survey asked four questions in relation to criminal courts and level of confidence across defendants and victims rights, dealing with matters quickly and dealing with matters fairly. But what part of the criminal court system were respondents addressing? The judge? The legal representatives? The jury? The general nature of such questions, according to the ALRC can ‘obscure more complex views and experiences’.[11]
The ALRC, in an effort to delve into some of these complex experiences as part of their Family Law inquiry, established an online portal. This portal allowed individuals to anonymously contribute their experiences within the family law system. Approximately 14% of respondents raised complaints regarding the Judge in their experience within the family law system. Specific complaints related to lack of accountability and transparency regarding complaints about Judges and bias in respect to gender, race or self-representation.[12] The ALRC has flagged the importance of having good data as part of their review into Judicial Bias and Public Confidence.[13]
So why do a review now?
The review has been prompted due to one specific case, Charisteas v Charisteas[14], which was initially commenced in 2006[TA18] . As of July 2020, there have been 21 published judgments from the courts relating to issues of family law, property settlement, trusts and cost orders.
However, it was the non-disclosure of contact between the primary judge of the Family Court of Western Australia and the counsel for the ex-wife between March 2016 and February 2018 which has highlighted the need for a review.
As reported in The Australian, the judge and counsel for the ex-wife ‘met for drinks or coffee about four times, spoke on the phone about five times, and exchanged “numerous” text messages’.[15] Needless to say, this behaviour got round the family law practitioner schoolyard quicker than Pedro Pascal [SB21] signing on to play another single dad role, and Mr Charisteas appealed to the Full Court of the Family Court of Australia citing (amongst other issues), apprehended bias of the original judge.
Whilst the majority of the full Family Court of Australia dismissed the appeal, Family Court Chief Justice Alstergren strongly dissented, raising issue that there was no timely disclosure of the communications between judge and counsel, and that such failure to disclose, of itself, can, and in my view in this case, does give rise to a reasonable apprehension of bias … I am satisfied that a reasonable fair minded lay observer, armed with all the relevant facts, would reasonably apprehend that the primary judge might not bring an impartial and unprejudiced mind to the adjudication of the proceeding.[16]
In February 2021, The High Court of Australia granted Mr Charisteas special leave to appeal on the ground that the trial judge of the Family Court may have appeared biased.
The Charisteas case resulted in numerous legal practitioners contacting the Attorney-General who has now requested an inquiry into current laws relating to impartiality and bias as they apply to the federal judiciary.
Would You Like To Know More?
Additional information regarding the review can be found here.
References [1] https://www.alrc.gov.au/publication/the-law-on-judicial-bias-a-primer-ji1/ [2] Law in Context, 4th ed, Stephen Bottomley and Simon Bronitt, p 45. [3] Cameron Stewart, The Rule of Law and the Tinkerbell Effect: Theoretical Considerations, Criticisms and Justifications for the Rule of Law, Macquarie Law Journal http://www5.austlii.edu.au/au/journals/MqLJ/2004/7.html#:~:text=Formalism%20is%20central%20to%20the,difference%20between%20politics%20and%20law. [4]GUIDE TO JUDICIAL CONDUCT (aija.org.au) [5] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [3] (Gleeson CJ, McHugh, Gummow and Hayne JJ). [6] Mason CJ and McHugh J in Webb v The Queen (1994) 181 CLR 41, 53. [7] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [203] (Gleeson CJ, McHugh, Gummow and Hayne JJ). [8] Lord Hewart, then the Lord Chief Justice of England Rev v Sussex Justices [1924] 1 KB 256 [9]The work of the Australian judiciary: Public and judicial attitudes [10] N 9. [11] https://www.alrc.gov.au/news/importance-of-good-data/ [12] https://www.alrc.gov.au/wp-content/uploads/2019/08/19_june_2019_tuys_explanatory_note_002.pdf [13] https://www.alrc.gov.au/news/importance-of-good-data/ [14] Charisteas v Charisteas [2002] FamCAFC 162. [15] https://www.theaustralian.com.au/business/legal-affairs/is-it-ok-for-judges-barristers-to-meet-high-court-to-rule/news-story/9dbbe4bbfe6496bc9001d7bf3f81774d [16] Charisteas v Charisteas and Ors [2020] FAMCAFC 162, [57], [59].