Without Fear or Favour, the ALRC final report on judicial impartiality and the law on bias, features the following recommendations
Identifying and Raising Potential Bias Issues
R 1 Each Commonwealth court should develop and publish guidelines on the process and principles of judicial disqualification, modelled on the Recusal Guidelines published by each New Zealand court.
Self-Disqualification Procedure
R 2 The Federal Court of Australia and the Federal Circuit and Family Court of Australia should each establish a new procedure for the discretionary transfer of applications for disqualification in cases before a single judge. The procedure should facilitate the transfer of the application to another judge of the same court, and should be formalised in a Practice Note or Practice Direction.
R 3 The Federal Court of Australia and the Federal Circuit and Family Court of Australia should, through the guidelines on judicial disqualification and, where necessary, rules of court, specify that objections on bias grounds to one or more judges sitting on a multimember court are to be determined by the court as constituted.
Review and Appeal Mechanisms
R 4 The Federal Court of Australia and the Federal Circuit and Family Court of Australia should each establish streamlined interlocutory appeals procedures in relation to disqualification decisions by a single-judge court. The procedure should be formalised in a Practice Note or Practice Direction.
Other Mechanisms for Raising Allegations of Bias
R 5 The Australian Government should establish a federal judicial commission.
Finding Clarity in Law and Practice
R 6 The Council of Chief Justices of Australia and New Zealand, and the Law Council of Australia and its constituent bodies, should review relevant rules and guidance on conduct in light of the High Court of Australia’s decision in Charisteas v Charisteas [2021] HCA 29. These reviews should aim to achieve coherence between the Guide to Judicial Conduct and the relevant legal profession conduct rules.
Institutional Supports and Safeguards
R 7 The Australian Government should develop a more transparent process for appointing federal judicial officers on merit, involving: y publication of criteria for appointment; y public calls for expressions of interest; and y a commitment to promoting diversity in the judiciary.
R 8 The Attorney-General (Cth) should collect, and report annually on, statistics regarding the diversity of the federal judiciary.
R 9 Each Commonwealth court, through its head of jurisdiction, should develop a structured and transparent approach to the training and ongoing professional development of judges. Each court should report annually in a standardised manner on the provision of, and attendance at, training and professional development.
R 10 In implementing Recommendation 9, each Commonwealth court should develop a structured and ongoing program of Aboriginal and Torres Strait Islander cross-cultural education for members of the federal judiciary. The development and delivery of the program should be led by Aboriginal and Torres Strait Islander people and organisations.
R 11 The Council of Chief Justices of Australia and New Zealand should consider a broad review of the Guide to Judicial Conduct as it relates to judicial impartiality.
R 12 Each Commonwealth court should systematically capture court users’ subjective perceptions of procedural justice using standardised tools.
R 13 The Commonwealth courts (individually or jointly) should develop a policy on the creation, development, and use of statistical analysis of judicial decision-making.
R 14 The Commonwealth courts (individually or jointly) should create accessible public resources that explain: the processes and structures in place to support the independence and impartiality of judges; and the mechanisms in place to ensure judicial accountability.
