What the ALRC Report on Judicial Impartiality Means for You
https://www.alrc.gov.au/publication/ji-report-138/ (ALRC Report 138 url)
About This Report
In December 2021, the Australian Law Reform Commission (ALRC) published its final report, “Without Fear or Favour: Judicial Impartiality and the Law on Bias” (Report 138). The ALRC is an independent body that examines Australian laws and recommends reforms to the federal government. This report was the first of its kind in Australia – a dedicated national review of whether the federal judiciary’s rules and practices around bias are fit for purpose.
The report was based on extensive consultation with over 180 individuals and organisations, including judges, solicitors, barristers, litigants, community groups, and academic experts. It also drew on four separate surveys and a review of hundreds of published court decisions.
The title comes from the judicial oath that every judge swears before taking office: “I will do right to all manner of people according to law, without fear or favour, affection or ill will.” It is a foundational promise. This report examined how well that promise is being kept, and where the systems meant to uphold it are falling short.
What Is Judicial Impartiality, and Why Does It Matter?
When a man or woman goes to court – whether dealing with a family law dispute, a contract claim, a criminal charge, or any other matter – they are entitled to have their case decided by a judge who is genuinely independent. The judge must decide the case on the evidence and the law alone, not because of any personal interest in the outcome, any relationship with one of the parties, any preconceived view formed before hearing the evidence, or any background attitude or assumption that favours one side.
This is called judicial impartiality. It is not just a courtesy – it is a constitutional requirement, essential to the rule of law and the legitimacy of every court decision.
When a judge has, or appears to have, a conflict of interest or a predisposition toward one party, this is called “bias.” Australian law recognises two forms: actual bias (a judge is in fact partial) and apprehended bias (a fair-minded observer would reasonably think the judge might be partial). A judge who is or appears to be biased is required to step aside from the case.
What the ALRC Found
The report’s overall finding was measured but significant. The Australian judiciary is generally respected and, at a broad level, public confidence in the courts is high. Most judges take their oath seriously. However, the inquiry identified clear and serious gaps in the systems that are supposed to uphold impartiality – and the experiences of real litigants revealed that those gaps can cause genuine harm.
Key findings included the following.
Litigants felt unheard and disrespected. Many men and women who came forward during the inquiry described experiences that troubled the ALRC. Litigants reported being prevented from putting their case, having judges who had not read the papers, being treated with dismissiveness or outright rudeness, and being warned by their own solicitors about a particular judge’s “reputation” before the hearing even began. Several described the experience of litigation as traumatic. Many said it had damaged their health, their relationships, and their financial security.
Complaints procedures are inadequate. When litigants tried to raise concerns about a judge’s conduct or impartiality, they regularly hit a wall. Complaints were directed back to the very court the complaint was about. Internal processes were opaque, inconsistent, and often felt like they were going nowhere. One litigant described being unable even to find a contact email address. Another said, in plain terms: “We need to have a place where complaints of miscarriage of justice are heard.” The ALRC found this concern was widespread and legitimate.
Lawyers and judges see things differently. The surveys revealed a striking gap in perception. Nearly three quarters of solicitors and barristers considered that the existing procedures encourage litigants to underuse bias claims – meaning potential bias goes unaddressed. Only one in twenty judges agreed. Similarly, more than four fifths of lawyers, but only about a quarter of judges, considered there are circumstances where a disqualification application should be decided by a different judge, not the judge being challenged. The ALRC took both perspectives seriously but was clearly concerned about the gap.
The test for apprehended bias may be set too high in practice. The legal test asks what a “fair-minded lay observer” – an ordinary, reasonably informed non-lawyer – would think about the situation. In principle this is a sound approach. In practice, concerns were raised that judges sometimes attribute so much knowledge and faith in judicial integrity to this hypothetical observer that the test ends up reflecting what a judge thinks, rather than what an ordinary member of the community would genuinely think. Some recent High Court decisions have moved toward a more realistic and appropriately sceptical approach, which the ALRC endorsed.
The composition of the judiciary is itself an impartiality issue. For most of Australia’s legal history, the bench has been drawn from a narrow group – predominantly older Anglo-Australian men from similar professional and social backgrounds. The report found this homogeneity matters, because a judiciary that does not reflect the community it serves is less likely to understand the lived experience of many litigants, and public confidence suffers as a result. The representation of women, Aboriginal and Torres Strait Islander people, and Australians from culturally diverse backgrounds on the federal bench remains well below what the population would suggest is appropriate.
What the ALRC Recommended
The report made 14 formal recommendations. In plain terms, the most important of these were as follows.
Each Commonwealth court should publish clear, accessible guidelines explaining exactly when a judge should step aside from a case, covering situations such as a financial interest in the outcome, a relationship with one of the parties or their legal representatives, having previously expressed firm views on the issues, or having been exposed to information about the case outside the proper process.
Courts should publish clear, plain-language information for litigants explaining how the system works – how judges are appointed, what the judicial oath means, how to raise concerns about a judge’s conduct, what complaints processes are available, and how to appeal.
A federal judicial commission should be established – an independent body to receive and investigate complaints about the conduct of federal judges. This would be separate from the courts themselves, addressing the obvious problem that internal complaints processes about judges are handled by the very institution the complaint concerns.
Judicial appointment processes should be more transparent, with published selection criteria and an independent advisory process. Greater diversity in judicial appointments – including women, Aboriginal and Torres Strait Islander people, and those from culturally diverse backgrounds – should be actively pursued as a matter of both fairness and institutional legitimacy.
Judges should undertake structured, ongoing professional development, including on cultural competency and the social and psychological research on how bias operates in human decision-making. This is not a reflection on the integrity of individual judges – it is recognition that all human decision-makers, including judges, are subject to unconscious influences that benefit from conscious attention.
Courts should systematically collect and publish data on court user experiences, and on statistical patterns in outcomes, so that the community can assess over time whether the system is performing as it should.
What This Means in Practice
If you are dealing with a court matter, as either a party or an adviser, this report is relevant to you in several practical ways.
You have a right to a judge who is impartial, and the law provides a mechanism to challenge that if it is genuinely in question. The threshold is not trivial – it must be firmly established – but the right exists and should not be dismissed. If you believe a judge has a conflict of interest, a pre-formed view, or a relationship that creates a reasonable appearance of partiality, you are entitled to raise it.
The ALRC found that the processes for raising such concerns were inconsistent and, in many cases, poorly understood by litigants. The recommended reforms – if implemented – would make those processes clearer, more accessible, and more transparent.
The report also validated what many litigants already know: that the experience of court can feel overwhelming, impersonal, and at times unjust, even where no formal bias exists. The ALRC’s recognition of this, and its recommendations for better complaints handling and court user feedback, are significant acknowledgements that the system must be more accountable to the men and women who use it.
A Final Note on the Status of These Recommendations
This report was published in December 2021. The ALRC’s recommendations are not self-executing – they require action by the Commonwealth government, the courts, and relevant professional bodies. Implementation has been uneven. Men and women dealing with the federal courts today should be aware that many of the reforms recommended in this report had not been fully implemented as of the date of this summary. The report remains, however, an authoritative statement of what impartiality requires, and a useful reference point for anyone navigating the federal court system.
Fiat iustitia, ruat caelum – Let justice be done, though the heavens fall.
Source: Australian Law Reform Commission, Report 138, “Without Fear or Favour: Judicial Impartiality and the Law on Bias” (December 2021). This summary is for general information only and does not constitute legal advice.
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