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Federal government to establish judicial commission and improve appointment transparency

The government will implement all three recommendations of a judicial bias report by the Australian Law Reform Commission (ALRC) to boost public confidence in Australia’s legal system.  

user iconJess Feyder 03 October 2022 Big Law
Federal government to establish judicial commission and improve appointment transparency
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The ALRC welcomed the commitment from Attorney-General Mark Dreyfus to implement the recommendations made to it in Without Fear or Favour: Judicial Impartiality and the Law on Bias.

The A-G confirmed that the government agreed to the implementations in principle and would implement recommendations five, seven and eight

  • Establishment of a Federal Judicial Commission; 
  • Development of a more transparent process for appointing federal judicial officers on merit, involving publication of criteria for appointment and public calls for expressions of interest, and expressed the government’s commitment to promoting diversity in the judiciary; 
  • Collection and reporting of statistics on judicial diversity. 
“The government is already acting to restore integrity in the judicial appointments process by establishing a more transparent, merit-based approach [sic] and we will now consult closely with the federal courts and other key stakeholders on the recommended establishment of a federal judicial commission,” said Mr Dreyfus.


“At a minimum, the new appointments process will implement the ALRC’s recommendation to publish criteria for appointment and issue public calls for expressions of interest,” the government response said. 

The recommendations will be implemented after consultation and will seek to support litigant and public confidence in judicial impartiality and strengthen institutional structures to support judges and address systemic biases. 

The A-G said the next step for the government was to consult with relevant entities on implementing the report’s 11 other recommendations to promote and protect judicial impartiality, directed at the federal courts, the council of chief justices of Australia and New Zealand, and the Law Council of Australia.

President of the ALRC, the Honourable Justice Sarah Derrington, said the inquiry found that public confidence in Australian judges was generally high and that judges took their oath of office to administer impartial justice seriously. 

“The implementation of the recommendations will strengthen an already good system,” she said

“The establishment of a federal judicial commission would build on the successful work of judicial commissions in the states and territories upholding the integrity and independence of the judiciary.”

The government’s acceptance of the ALRC’s recommendations demonstrates the value of independent, evidence-based law reform and the ALRC’s highly consultative approach, according to a statement. 

Over the course of the inquiry, more than 2,000 people across Australia contributed their views to the ALRC through surveys and consultations. 

Those consulted included litigants and other court users, current and former members of the judiciary and tribunals, the legal profession, non-profit legal services, community groups, and academics. 

The consultations informed the recommendations, which will now be implemented. 

The inquiry relates to the law as it applies to judges in the High Court, Federal Court, and Federal Circuit and Family Court. 

The inquiry was prompted by the decision of a Full Court of the Family Court of Australia in Charisteas v Charisteas, concerning personal contact between the trial judge and counsel for one of the parties. 

The Law Council of Australia (LCA) has also welcomed the government’s announcement.

The LCA has been calling for a standalone federal judicial commission since 2006, LCA president Tass Liveris said in a statement. 

“It is essential to the promotion of the rule of law and the Australian constitutional system that there be a strong, independent, and transparent judiciary. Consistent with this aspiration, a means of fairly and punctually addressing complaints directed to the judiciary in an independent, structured manner is necessary,” he said. 

“A federal judicial commission, underpinned by four key features, namely independence, coherence, accessibility and transparency, will assist to provide a clear and structured framework for responding to such complaints.” 

The LCA also sees a role for a federal judicial commission in the provision of education, training, and development to the judiciary and in assisting judges with difficult ethical questions.

“We would support the collection and release of annual statistics on the diversity of the federal judiciary,” said Mr Liveris. 

“The Law Council has advocated for appointments that are reflective of the diversity of each jurisdiction, including with respect to social, cultural, or other groups, in a specific jurisdiction or nationwide.

“Reporting on these factors could assist in ensuring efforts to promote them are maintained.

“We commend the Attorney-General and [the] government for listening to the views of the profession and look forward to working with them to implement these essential measures.”

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