Self-disqualified judges, overhauled federal appointment process front of mind for judicial impartiality inquiry

Self-disqualified judges, overhauled federal appointment process front of mind for judicial impartiality inquiry

02 May 2021 By Naomi Neilson
judge

Numerous text messages and coffee meetings between a judge and barrister in the same matter have incited an inquiry from the Australian Law Reform Commission that questions whether judges should be self-disqualified, how written guidelines should be amended and whether the appointment process should be overhauled.

Over a 23-month period, the Honourable Justice John Walters QC exchanged many text messages and phone calls with barrister Gillian Anderson who was representing one of the clients in a matter he was presiding over. This “personal relationship” has generated concern about apprehended bias and public confidence in the judiciary.

In response, the Australian Law Reform Commission (ALRC) released a consultation paper that posed the question of whether the Council of Chief Justices of Australia and New Zealand and the Law Council of Australia and its constituents should coordinate reviews of the Guide to Judicial Conduct as it relates to communication.

“The ALRC has formed the preliminary view that, although a certain degree of flexibility is likely to be required, greater specificity will assist judges and the legal representatives – particularly when they are new to the bench of the profession – and will help avoid situations of extensive wasted time and costs such as those demonstrated in Charisteas,” the ALRC consultation paper submitted.

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Early consultations have indicated a lack of specificity in written guidelines about exactly what contact between a judge and a lawyer appearing in litigation before them is prohibited, with practice determined to a large extent by unwritten rules. It meant there were no specific prohibitions on the text messages, five phone calls and the drinks or coffee meetings between Justice Walters and Ms Anderson.

The ALRC has been asked to consider whether the law on actual and apprehended bias remains “appropriate and sufficient” to maintain public confidence in the administration of justice. It reached a preliminary conclusion that the law and procedures associated with it “require greater certainty and transparency”.

Additionally, it found that the law falls short in addressing a perceived lack of impartiality, which also shows that the “law on bias is not, and can never be, enough to maintain public confidence in the administration of justice on its own”. It added that the law on bias is “not well suited to addressing systemic and ongoing threats” to impartiality and the perceptions by the general layperson on judicial bias.

More specifically, the mechanism for determining this bias claim is difficult for litigants and the public to accept, incompatible with scientific research and “may have a chilling effect on meritorious applications”. With tensions between the efficient allocation of judicial resources and the bias rule, it is insufficient to address any unacceptable judicial conduct in court and to review decision-making patterns.

“In light of this, ALRC suggested a continuation of the process of reframing the expectations of the common law puts on judges and turning the focus towards supporting impartiality. Rather than the ‘good judge’ being one who is peculiarly resistant to bias, steps a judge takes to acknowledge and mitigate bias and the appearance of it should be seen as positive contributions to upholding impartiality,” the ALRC found.

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“In this, judges should be supported by systems and structures that prevent and mitigate, to the extent possible, challenges to impartiality arising, and properly equip judges to manage them when they inevitably do.”

The ALRC also identified systemic and ongoing issues that contribute to bias, including socially based attitudes, stereotypes and a lack of cultural competency that may negatively impact the impartiality of judicial decision-making. This is in addition to under-resourcing of the system and inadequacies in appointments.

To rectify this, the commission suggested the Australian government commit to a more transparent process for appointing federal judicial officers that involves a call for expressions of interest, publication of criteria for appointment and explicitly aims for a suitably qualified pool of candidates who reflect the diversity of the community.

“Implementing this proposal would strengthen public confidence in the impartiality of the judiciary, while promoting the appointment of suitably qualified candidates from a diverse range of backgrounds and experiences to the bench. Consultations and research suggest further enhancing the diversity of the judiciary may ameliorate negative effects of in-group preferences and social bias,” the commission submitted.

ALRC president the Honourable Justice Sarah Derrington said judicial impartiality is central to justice and systems to support it need to reflect and respond to the realities of modern Australian society.

“Our consultation proposals and questions for this inquiry focus on enhancing the institutional structures that already exist to support impartial decision-making, along with the implementation of transparent procedures and guidelines, which are foundational to the rule of law and the public’s confidence in the administration of justice in Australia,” Justice Derrington said.

The ALRC has invited submissions in response to 25 questions and proposals in relation to judicial impartiality and the law on bias, due by end of June 2021.

Self-disqualified judges, overhauled federal appointment process front of mind for judicial impartiality inquiry
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