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‘Unfounded’ criticisms made of judge, Chief Justice says

The Chief Justice of the Federal Court has now weighed in on a controversial report about the alleged impartiality of judges, labelling it as “unfounded” criticism.

user iconNaomi Neilson 01 September 2021 Big Law
the Honourable Chief Justice James Allsop AO of the Federal Court
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In its submission to the Australian Law Reform Commission’s (ALRC) inquiry into judicial impartiality, Liberal Party think tank The Menzies Research Centre made several “defamatory” statements about one particular judge. The research, identified as “flawed”, was not published on the commission’s website. 

This may have gone unnoticed but for a column in The Australian that accused ALRC of succumbing “to a now familiar form of institutionalised silencing”. In turn, the Australian Bar Association (ABA) president Matthew Howard came out in support of the ALRC’s decision not to publish and defended the named judge. 

“The methodology employed in analysis of this kind is flawed,” he said. “The Australian people are well served by highly competent, hard-working and independent judges. Judges take an oath to serve the community without fear or favour and it is unfair to question their independence on the basis of the ‘statistics’.”

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Now, in response to the ABA and an article from the Australian Judicial Officers Association, the Honourable Chief Justice James Allsop AO of the Federal Court said that criticism of the judge – whom Lawyers Weekly has chosen not to name given the allegation of defamation – “was and is unfounded”.

“All judges take a judicial oath to administer justice without fear or favour, affection or ill will,” Chief Justice Allsop said in a recent statement. 

“All judges understand the deep importance of that oath. The oath creates the gulf between other spheres of life and beliefs, and the work of a judge, and its foundation of the independence of the judiciary.” 

The Menzies Research Centre provided a statement in response:

The Menzies Research Centre is a think tank that champions Liberal principles and advocates for a free, just and prosperous Australia.

As defenders of the principles and institutions that have helped to propagate the liberal democratic tradition, we broadly support and promote initiatives to strengthen our system of government.

Consistent with our organisational objectives, the MRC responded to a call from the Australian Law Reform Commission (ALRC) for public submissions into its Review of Judicial Impartiality.

Our submission analyses in a very considered and dispassionate approach statistics of 271 verdicts made by 33 Federal Court judges in the area of employment law between July 2018 and July 2020.

Our submission did not state that the judges or any one judge cited in our research are biased. Nor should our paper be read as criticism of the judiciary or any judge in particular. It was a submission in favour of collecting data on court decisions, to be made available to the public, so they are best able to guard against any apprehension of bias.

Our report was thoroughly researched, carefully drafted and vetted by lawyers before it was submitted. Aside from data set analysis, the report contains analysis of legal discussions, opinions expressed by members of parliament and opinions expressed by judicial officers. Its recommendations are informed by carefully considered reasoning and analysis.

We emphatically reject the assertion made by the ALRC that our report contains defamatory material.

It squarely addresses the matters on which the commission called for submissions. And it is attune to the submissions made public by the ALRC.

A submission to a policy review by a public policy think tank is clearly in the public interest and is protected under Australian law. It should not be censored.

Following its decision to reject publishing our submission, we sought clarification from the ALRC for an explanation of any defamatory imputations so that we may address them. Some four weeks after our enquiry, we have yet to receive a response.

 

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