Public trust in judges is fundamental to a well-functioning family law system. Although judges pride themselves on their impartiality, sometimes there are suspicions in the community, aired in the media, that judges are biased generally against fathers or mothers and that the system is routinely failing children. From time to time, specific allegations of bias are also raised in family court matters, for example allegations that a judge is in cahoots with a party in some way, or that the judge’s gender resulted in a bias towards a party. So one of the important aspects of family law reform is to rebuild public confidence in judges’ impartiality and the mechanisms for handling allegations of bias.
Last year, the ALRC’s report “Without fear or favour: Judicial impartiality and the law on bias” was published, which included 14 recommendations for reform in this area. And now, Attorney-General Mark Dreyfus has announced that the Government will implement all of the recommendations contained in the ALRC’s report.
As a starting point, the Government says it will establish new judicial commission to hear complaints against judges, in order to boost public confidence in judicial impartiality. Mr Dreyfus said:
“The government has given in-principle support to the judicial commission as a transparent and independent means to address concerns about the conduct of judges and reinforce public trust in the judicial system.”
Impartiality is a basic tenet of the judicial role and officers take an oath “to do right by all persons, without fear or favour, affection or ill-will.” And the ALRC report confirms that “appointed decision-makers took seriously their oath of office to administer impartial justice”.
Similarly, findings from the Flinders University Judicial Research Project several years ago showed that 90 percent of Australian judicial officers valued impartiality as “the most important quality to bring to the bench” and indicating that Australian judges use “a range of long-honed strategies to allow them to avoid bias in their judgments.”
So what happens if a judge is accused of bias?
Accusations of bias made in a court proceeding are treated very seriously. Bias in the system can be real (“actual bias”) or perceived (“apprehended bias”). There are well established tests for each of these types of judicial bias.
Actual bias occurs when a judge is shown to be biased in favour of one of the parties or so committed to a certain outcome that any evidence and argument raised will not change the outcome.
Apprehended bias is found to exist when a “fair minded lay observer” would reasonably surmise that the judge was not bringing an impartial, unprejudiced mind to the matter. Where there is doubt over apprehended bias, a judge should disqualify him or herself.
However, the way that alleged bias is dealt with in the courts is that if an application is made to have a judge disqualified from proceedings, that judge him or herself will decide whether or not to agree to be removed. It’s a method of self-disqualification that has copped a lot of criticism over the years, since having the same judge who is assigned to hear a matter decide whether to disqualify themselves might potentially create in the community “a suspicion that the fox is guarding the hen house”.
Although bias is rarely actually found to be established, a recent case decided by the High Court (pseudonymised as Charisteas and Charisteas) found that a judge would be perceived by a fair-minded lay observer as having an apprehension of bias against a husband, because of the judge socialising with the wife’s barrister. The case is said to have prompted the ALRC to review laws regarding judicial bias.
The ALRC has proposed numerous reforms to handle the problem of self-disqualification. Essentially, bias applications should not be heard by the judge accused of bias him or herself.
Other ideas debated over the years include establishing a register of interests (relating to such things as, for example, disclosing shareholdings in companies, patronage of charities, or invitations to attend political gatherings.)
The Attorney-General says the next steps for the Government involve consulting with relevant entities on implementing the report’s 11 other recommendations to promote and protect judicial impartiality. It will be interesting to see how the Government’s adoption of the ALRC recommendations will translate into practical reforms, including on the vexed issue of self-disqualification.
You can read the ALRC’s summary of recommendations here.
For help with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.