Judicial Impartiality: Consultation Paper
The submission to the Australian Law Reform Commission (ALRC) regarding its Judicial Impartiality Consultation Paper was prepared by the Law Council of Australia.
Judicial impartiality, both actual and apprehended, is critical to procedural fairness and has a profound impact on public confidence in the judicial system. 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.
As a general position, the Law Council agrees that there may be benefit in providing clearer guidance regarding processes about the recusal and disqualification of judges from the High Court of Australia, Federal Court of Australia, Family Court of Australia and Federal Circuit Court of Australia (together, the Federal Courts), particularly for self-represented litigants and the community.
However, should some or all of the ALRC’s proposals be progressed, it will be necessary that the Australian Government commit targeted additional resources to ensure proper implementation. In particular, any reform proposals that seek to involve an additional judge in decisions regarding contentions of bias, or allow for greater scope for judges to recuse themselves, will clearly have an impact on judicial resources. It is critical that any such proposals are coupled with adequate funding to avoid adding to existing cost, delay and administrative burden in the Federal Courts.
Beyond the ALRC’s proposals as they relate to the conduct of a proceeding, the Law Council is of the view that there is significant benefit in a number of the other measures proposed by the ALRC, including:
- proposals to increase access to education and training for judicial officers, including cultural awareness training;
- steps to achieve greater diversity in the judiciary and legal profession;
- a focus on a more transparent process for appointing federal judicial officers; and
- the potential role of a Federal Judicial Commission in assisting judges with difficult ethical questions, including in relation to conflicts of interest and recusal, and in relation to issues affecting their capacity to fulfil their judicial function.
The Law Council welcomes the ALRC’s explicit recognition of the fact that Aboriginal and Torres Strait Islander peoples can experience bias within the justice sector as a specific cohort. This is an area of significant concern to the Law Council, and this submission contains a number of references to possibilities for improvement to further promote cultural competency in the federal judiciary, particularly as it relates to Aboriginal and Torres Strait Islander peoples within the justice system.
More broadly, the Law Council notes that while the Consultation Paper discusses unacceptable judicial conduct in the courtroom, the ALRC does not make a proposal for further work in this area.1 In the Law Council’s view, any steps taken to give greater clarity to parties on the law and processes for addressing bias should be accompanied by measures, such as the establishment of a Federal Judicial Commission.
You can read the full submission below.
1 See, eg, Australian Law Reform Commission, Judicial Impartiality (Consultation Paper CP1, April 2021) -  (‘Consultation Paper’).