THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
Release of the Government response to the Australian Law Reform Commission Report 138:
Without Fear or Favour: Judicial Impartiality and the Law on Bias
Thursday, 29 September 2022
Introduction and Acknowledgements
I begin by acknowledging the Traditional Custodians of the land on which we meet today and pay my respects to their Elders past and present. I would like to extend that respect to any Aboriginal and Torres Strait Islander peoples here today.
I am honoured to present today’s keynote address on the Australian Law Reform Commission (ALRC) report – Without Fear or Favour: Judicial Impartiality and the Law on Bias.
Because of the rescheduling of Parliament, I am sorry that I am unable to be there in person to celebrate this important contribution to our understanding of the law on bias and the structures that support public confidence in our judiciary.
I would like to thank the ALRC, under the stewardship of Justice Sarah Derrington, for its hard work and commitment in delivering this report and for hosting today’s workshop.
I also acknowledge the expert assistance provided by the ALRC’s Advisory Committee and the substantial number of contributors to the report.
The Albanese Government is committed to restoring trust and integrity in our institutions, and the ALRC’s most recent report is an important contribution to strengthening the rule of law in Australia.
Our Judiciary and Good Governance
As all of you know, the Australian Constitution establishes the Parliament, Executive and Judiciary as the three branches of our government.
The courts and judiciary play a significant role by providing important checks and balances on the exercise of powers by the Parliament and Executive.
The courts also provide an important public service, resolving disputes and holding the power to interpret laws and determine their application in individual cases.
Our courts and judiciary are fundamental to good governance and it is critical that they continue to be based on the highest standards of integrity.
Thankfully, Australia has a proud record of being well served by our judiciary.
However, just as each branch of government is responsible for the promotion and protection of the rule of law – each branch should also continually strive to improve.
The Importance of Judicial Impartiality
Judicial independence and impartiality are critical principles which underpin the role of the judiciary.
As with the other branches of Australian Government, the courts and judiciary must serve all Australians.
And all Australians must be able to see that integrity is at the heart of our system of government and the heart of our legal system. This means that:
- Our legal system and laws must be transparent and accessible.
- The laws, rules and structures of the legal system should be understood by those applying the law and accessible to people who are outside the legal community and who are served by it.
Each branch of Government should also reflect the Australian community in its diversity.
Australians should be able to look to the Parliament, the Executive, and the Judiciary, and see a reflection of the community they are part of.
Public Trust in the Administration of Justice
The principle of judicial impartiality is also integral to public trust in the administration of justice in a modern democratic society.
That a court will consider matters brought before it without bias is fundamental to public trust in a legal system that serves the Australian people – a system that is, and is seen to be, fair.
As the High Court of Australia recognised in Webb v The Queen (1994), the ‘public is entitled to expect that issues determined by judges and other public office holders should be decided, among other things, free of prejudice and without bias.
This is a core value of our legal system – that the law is applied equally to everyone before it.
The protection of dignity, and equality for people who are before the courts, is also aligned with the prohibition of discrimination in international human rights law.
Impartiality can also improve the quality of judicial decision-making by, for example, promoting accuracy of fact-finding and application of the law.
In this way, it can encourage the confidence and cooperation of litigants and the public who rely on the courts to determine matters in dispute concerning their rights and responsibilities.
Conversely, perceptions of bias or poor judicial conduct can undermine the operation of dispute resolution and governance.
Existing Structures to Support Judicial Conduct
Judges are people, with personal and professional knowledge, social and cultural experiences, and interests beyond the bench.
Our laws, rules and institutional structures contribute to recognising unacceptable bias or influence, and ensuring our justice system is fair.
While judges swear an oath to serve the people and are responsible for upholding high standards of judicial conduct, the principle of judicial impartiality is also fostered through our laws, and the institutional and administrative structures of the legal system.
Through common law, the operation of the bias rule enables a decision maker to be disqualified or remove themselves from hearing and deciding on an individual case if they have an interest in it.
Court rules and guidance assist judges on expected standards of conduct and responding to circumstances giving rise to the appearance of bias.
There are also institutional structures providing stewardship of the courts and judiciary, while recognising their independence.
Having noted the importance of judicial impartiality and public trust in our judiciary, and the structures that support this, I will now turn to discuss the inquiry and the report itself.
The inquiry, and the subsequent report, were prompted by the application of the law on bias arising from a decision of the then Full Court of the Family Court of Australia, which eventually came before the High Court for consideration and determination.
Other important judgments concerning judicial bias and high-profile allegations of inappropriate behaviour of individual judges provide further context to the ALRC’s inquiry.
Set against this background, the report highlights the high regard in which the federal judiciary is held in Australia and internationally – while also recommending reforms to strengthen the administration of justice.
I am pleased that the ALRC found that the substantive case law on actual and apprehended bias, as clarified by the High Court, does not require reform.
But there is always more to be done – and I appreciate the broad approach taken by the ALRC in considering whether more is required of our legal system to support judicial impartiality and public confidence in the federal courts.
As a strong, progressive, democratic society, it is right and appropriate that we look to strengthen our system of government.
The Government’s Response
The Albanese Government welcomes the ALRC’s 14 recommendations directed at further promoting and protecting judicial impartiality and public confidence in the judiciary.
The recommendations made by the ALRC are intended to enhance transparency and consistency in the application of the law on bias, and promote and protect judicial impartiality and public confidence in it.
The majority of the ALRC’s 14 recommendations are directed at the federal courts for consideration and further action.
These include recommendations to enhance transparency of the law and processes by which the courts manage potential judicial bias and improve the education and guidance available to judicial officers on these issues.
I look forward to working with the federal courts as they consider those recommendations.
The Government’s swift response to the report tabled in August reflects our deep commitment to law reform.
I now want to outline our response to the three recommendations which are directed to the Australian Government – recommendations 5, 7 and 8.
Judicial Commission (Recommendation 5)
Recommendation 5 calls on the Australian Government establish a federal judicial commission to consider complaints about the judiciary.
This recommendation reflects wide support for a transparent and independent process for handling complaints, and the Albanese Government has accepted this recommendation in-principle.
We are committed to restoring public trust and strengthening standards of integrity in our public institutions.
That is why this week we delivered on our commitment to introduce legislation for a powerful, transparent and independent National Anti‑Corruption Commission that will have broad jurisdiction to investigate serious or systemic corruption across the Commonwealth public sector.
- This includes the power to investigate ministers, parliamentarians and their staff, statutory officer holders, and employees and contractors of government agencies.
- It will have discretion to commence inquiries on its own initiative or in response to referrals from anyone.
- It will be able to investigate both criminal and non-criminal corrupt conduct, and conduct occurring before or after its establishment.
- It will have the power to hold public hearings, where exceptional circumstances justify doing so and it is in the public interest.
As many of you know, I am also a longstanding supporter of a federal judicial commission.
The ALRC report acknowledges that establishing a federal judicial commission is a significant reform, requiring its own policy development process, and has not proposed a particular model for the Government to adopt.
In response to the ALRC report, the Albanese Government is carefully considering the establishment of a Commission that can independently examine complaints made to it in relation to judicial officers, and take appropriate action, further embedding integrity and accountability in the justice system.
Of course, any federal complaints handling process must also be consistent with the independence of the courts enshrined in the Constitution.
This reform work reflects and builds upon the Government’s strong commitment to integrity, fairness and accountability across all areas of Government.
Judicial Appointments (Recommendation 7)
Recommendation 7 is that the Australian Government develop a more transparent process for appointing federal judicial officers on merit.
This is a recommendation that has been all the more necessary due to the practices of the previous government.
As I have previously said, the Albanese Government will be re‑introducing a transparent, accountable, merit-based appointments process for the federal judiciary as a priority.
Whether it’s the judiciary, tribunals or the Australian Human Rights Commission, our Government has started work to improve the appointments process.
We want Australians to have confidence in our institutions, allowing any qualified Australian to put up their hand to represent their community.
We are already acting to restore integrity to this process and I am looking to further embed integrity into these processes by:
- publishing the selection criteria for judicial appointments.
- seeking expressions of interest and nominations through broad consultation with heads of courts and the broader legal community.
- establishing panels for each vacancy within the federal courts.
- the panels will usually consist of a number of eminent individuals including: the head of jurisdiction, a retired judge from that jurisdiction, and a senior official of the Attorney-General’s Department.
- The advisory selection panels will work through the expressions of interest, conduct interviews, and make independent recommendations to me that I can take forward to Cabinet for consideration.
Given the breadth of work undertaken in each court, I am aiming to have a range of advisory selection panels to consider any vacant positions.
I am currently trialling a similar process in order to expeditiously fill current and emerging vacancies which are in the federal courts this year using broad consultation with key members of the legal community.
I expect to make further announcements on appointments to the federal courts shortly.
Reporting on Diversity of the Judiciary (Recommendation 8)
Recommendation 8 is that I, as Attorney-General, collect and report on statistics regarding diversity of the federal judiciary.
The Australian Government is committed to promoting diversity in the judiciary, and as Attorney-General, I intend to implement this important recommendation
We must ensure that laws are applied by judges and courts that reflect the diversity of modern Australian society.
Implementation of Recommendation 8 of the ALRC’s report will support our understanding of the extent to which judicial diversity exists and is being achieved within the federal judiciary as well as any areas for improvement.
I look forward to engaging closely with the federal courts to consider how collecting additional data on the characteristics of the judiciary could occur.
The effectiveness of our legal system is entirely dependent upon an independent and impartial judiciary.
I commend the ALRC for its significant contribution in providing a path forward for Australia to uphold a high standard of judicial integrity.
This Government strongly supports our judiciary and is committed to working closely with the federal courts and legal community in considering the ALRC’s recommendations.
Thank you very much again for your time today to consider this and to discuss the importance of judicial impartiality and the ALRC’s report.
I wish you all a productive and engaging workshop, and I look forward to working with you on the recommendations raised in the report.