Judges and their impartiality … The long neglected territory of complaints about federal judges … Teaching humility … Gingering up appointments … Data collection to pin point judicial outliers … Max Shanahan gets to grips with the bold work of the ALRC 

However, it wasn’t any of the regular bad boys of the bench that prompted the ALRC’s intercession, but rather the High Court’s criticism of the Full Feds’ interpretation of the Ebner apprehended bias test in Charisteas v Charisteas that prompted then-AG Christian Porter to order an inquiry into bias on the bench. 

The Law Reform Commission found that the Ebner test remains appropriate, but recommended significant changes to other areas.

While NSW, Victoria, SA, NT and the ACT all have various forms of independent agencies for dealing with complaints against the judiciary, no such mechanism exists at a federal level, despite multiple recommendations to do so in various reports and inquiries. 

As a result, heads of jurisdiction are left to deal with complaints internally and informally with inadequate resources and limited training. Inevitably, concerns arise about conflicts and the quality of complaint resolution. 

Indeed, judges themselves appear unhappy with the present situation. Former Family Court CJ Diana Bryant previously told a senate inquiry that neither she nor other heads of jurisdiction were “entirely comfortable” with holding responsibility for complaints, while judges have told the ALRC that “informal mechanisms are inadequate and not transparent” and that a judicial commission is “critically needed.” 

Litigants and lawyers suggested to the ALRC that “there were some serious, if isolated, issues in relation to poor judicial behaviour in court … that they did not see were being adequately addressed”. 

For the ALRC, a FJC would “provide a transparent and independent mechanism to consider … concerns about judicial behaviour or impairment”. 

An independent body would provide a more responsive solution than appeals – which are often inaccessible, complex and impractical – while allowing proper consideration of conduct which falls below the threshold for apprehended bias. Importantly, a judicial commission would likely be empowered to investigate matters of workplace harassment and bullying. 

The campaign for the establishment of a FJC is not new. The Law Council of Australia has supported a FJC since 2006, and a Senate inquiry recommended the creation of one in 2009. 

In 2019, the ALRC itself proposed an independent commission, while Chief Justice Tom Bathurst, as he then was, expounded the benefits of NSW’s commission in a speech to his federal colleagues in the same year. 

Even before the ALRC’s report was tabled in parliament last week, Attorney General Mark Dreyfus indicated the government intended to establish a FJC. 

However, details on what the commission will look like will have to wait – given the proposal is a “significant reform”, the report recommends further consultation and policy development. However, the ALRC president Sarah Derrington has indicated that any commission will “probably be similar” to the NSW model.

If the NSW Judicial Commission is anything to go by, tardy, tempestuous and trigger-happy judicial officers might wish to hurry to undertake some of the more rigorous professional development being proposed by the ALRC. 

A further focus of the commission’s report was the “patchy” and “unstructured” nature of judicial professional development in Australia. 

As it stands, participation in judicial education schemes is entirely voluntary. Professor Gabrielle Appleby told Justinian that “there is very limited reporting of what education is being conducted and what levels of participation there are”. 

The ALRC contends that this approach follows from the historic assumption that “when a judge is appointed, she or he has the necessary integrity, education, and training to undertake that role”. 

Unfortunately for the judicial truants, if the ALRC’s recommendations are accepted, courts will report annually on attendance at a revamped and transparent scheme of professional development. 

Under new education programs, judges will be expected to learn, among other things, emotional awareness skills, cultural competency and humility, and critically reflect on social and cultural biases. 

Litigants and lawyers alike will welcome this newly re-wired form of judge, though one wonders whether teaching some current judges humility and emotional awareness might be a Sisyphean task. 

In further recognition of the human frailties of judges, the commission has recommended that the current self-disqualification procedure for bias claims be reformed. 

As things are at the moment, the challenged judge hears and determines whether the relevant bias test has been satisfied as against their own conduct. 

Unsurprisingly, the commission noted that the current procedure “is not conducive to either positive litigant or public perceptions of procedural fairness …” and has a chilling effect on litigants’ confidence to bring disqualification applications. 

Grant Hammond, former judge of the NZCA, put it more colourfully:

“If we assume a visitation from an intergalactic jurist on a fact-finding mission around our galaxy, it is difficult to see how such a jurist would not feel bound to report this feature of recusal jurisprudence as being strange to the point of perversity.” 

Indeed, the strangest thing is that it has taken so long to realise that leaving judges to determine their own bias may be less than ideal. 

The commission has recommended that judges be granted the discretion to transfer disqualification applications to another judge of the same court. For multi-member courts, the report recommends that the assembled bench consider the matter as a whole, rather than each judge delivering their own ruling, as is the case currently. 

Further, it is argued that the ability to address disqualification matters at arms-length earlier in litigation will limit costly, inefficient and inaccessible appeals on such matters, as litigants are likely to have greater confidence in non-disqualification decisions. 

On the issue of appeals, the ALRC recommends streamlining the process for interlocutory appeals relating to disqualification motions:

“When an application for leave to appeal concerns a disqualification decision made by the challenged judge, the application should be automatically considered for expedition and allocation to the duty judge, without requiring parties to request this specifically.”

It is hoped that requiring leave for such an appeal and the ability to make cost orders against unsuccessful appellants will limit the tactical use of disqualification appeals. 

Ultimately, it is hoped that the streamlining of the interlocutory appeals procedure will encourage litigants, who would otherwise be discouraged by the cost and time of appealing a final decision, to address any bias issues.

Another key plank in the commission’s recommendations concern reform to the judicial appointments process. 

There should be publication of relevant criteria and expressions of interest, and “a commitment to promoting diversity in the judiciary”. 

A similar formalised appointments process existed between 2008-13, but was discontinued with the arrival of George Brandis as attorney general.

The federal judiciary has lagged behind the states on the issue of diversity on the bench. The Coalition government trailed both Victoria and NSW on gender diversity, notably appointing nine men to the Victorian registry of the Federal Court before giving the nod to a single woman. See also White man’s law 

At last count, only a quarter of Federal Court judges were women. While some progress has been made on the need to address the bench’s gender imbalance, racial disparities remain stark. 

Across Australia, Asian-Australians make up only 0.8% of the judiciary, despite representing almost 10% of the population. Likewise, there is only one indigenous member of the federal judiciary, with Australia’s first ever indigenous supreme court justice appointed in May 2022.

The ALRC’s recommendations seek to ensure that appointments to the federal judiciary address this lack of diversity, while removing the perception amongst the legal profession and society at large that appointments are something of a closed shop. 

Former Victorian judge Sally Brown had provided this description of the appointments process: 

“… judicial whisper goes around and someone ends up miraculously on the bench … there is a perception that it depends on who you know; that it is not based on any objective criteria.” 

If the Law Reform Commission’s recommendations are accepted, we may see an end to patronage and partiality smoothing the way for well-connected candidates. 

It is surely no coincidence that two of the federal court judges subject to criticism and numerous successful appeals – Street and Vasta – come from well-known and influential legal families. 

While a FJC might capture the attention of the media, and reforming appeals and appointments that of the profession, one quieter – but no less interesting – recommendation offered by the ALRC is that the Commonwealth courts should “develop a policy on the creation, development, and use of statistical analysis of judicial decision-making”. 

The recommendation comes in the same week as a UNSW statistical analysis of migration decisions in the Federal Court shows wide discrepancies in outcome, depending on the presiding judge – some of which “may potentially be explained by various forms of bias”. 

For example, migration cases before Judges Vasta and Street saw success rates of 0.71% and 1.34% respectively, compared to an 8% average, while some judges approved more than 20% of migration judicial review applications. 

The proliferation of statistical legal research enabled by new technology – the UNSW research data was compiled by code – has raised questions for the legal profession, which regards “assessing fairness by reference to statistical patterns … [as] anathema”. 

Indeed, in France, the government went so far as to criminalise statistical analysis of judgment patterns, for fear that confidence in the judiciary would be impacted. 

In Australia, statistics have been used for over 25 years in attempts to make out apprehended bias claims, but no such argument has been successful yet. 

The most recent attempt – which used analysis of Judge Sandy Street’s migration record – was struck out due to concerns about the reliability and context of the data. 

In conversation on the ABC’s Law Report, ALRC President Justice Sarah Derrington acknowledged that “that horse has bolted” when it comes to judgment data analysis, and the development of a data collection policy would enable courts to avoid ill-informed and sensational media coverage provoked by inaccurate data, while “having some tools to look at outliers in the statistics”. 

Whatever its appropriateness, the proliferation of judgment-pattern statistical analysis is sure to keep attention on certain judges, and as patterns become more widely known inside and outside the profession, it will be interesting to see how the courts respond. 

In a statement following the tabling of the report last week, Attorney General Mark Dreyfus indicated support for “restor[ing] integrity to the judicial appointments process” through a transparent, merits-based approach and reiterated his “longstanding support” for a federal judicial commission. 

The government was more coy on the report’s other recommendations, promising to “consult widely and respond in due course”.