Reflections on the Principles Articulated by the Hon Chief Justice Gleeson AC
Nemo iudex in causa sua — no man should be a judge in his own cause.
Link to Gleeson CJ speech (HCA url)
At the National Judicial College of Australia in Canberra on 9 February 2007, the Hon Murray Gleeson AC, then Chief Justice of the High Court of Australia, delivered a speech titled “Public Confidence in the Courts.” It was, in its essence, a challenge to the judiciary to do something that institutions find genuinely difficult: to listen. Not merely to the profession, not merely to appellate correctives, but to the voices of ordinary men and women who rely upon the courts and whose trust the courts must earn and retain.
That speech, cited with approval in the Australian Law Reform Commission’s final report on judicial impartiality (“Without Fear or Favour,” Report No 138, 2023), has since become a reference point in the broader debate about what it means for a court to be impartial, and why that question is not one that judges alone can answer.
This article draws on the materials gathered in that ALRC inquiry and related primary sources to examine the principles Gleeson CJ articulated, the legal architecture that supports them, and what they continue to demand of courts and litigants alike.
The echo chamber problem
The most striking passage in Gleeson CJ’s 2007 speech concerned the risk that courts assess their own standing using criteria that the public at large does not share. His Honour observed that judges are insiders to the process, and that some things which may concern them may be matters of indifference to those outside the system, while matters of genuine concern to the public may be dismissed by judges as insignificant. Any professional group assessing the esteem in which it is held by outsiders, he warned, “is undertaking a risky exercise. They need to be sure they are listening to voices from outside, and that they are not working in an echo chamber.”
This is not a peripheral observation. It goes to the heart of the legal test for apprehended bias. That test, established by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, in a joint judgment which included Gleeson CJ himself, asks whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. The touchstone is not the judge’s assessment of his own impartiality. It is not even the assessment of a well-informed lawyer. It is the assessment of a hypothetical member of the public served by the courts — a man or woman who brings no specialist knowledge of the legal profession to the exercise but who is credited with ordinary reasonableness and the basic understanding that judges must decide cases on their merits.
The deliberate choice to anchor the test in public perception rather than judicial self-assessment was, as the ALRC noted, justified precisely on the basis that public confidence is more likely to be maintained if the courts adopt a test that reflects the reaction of ordinary, reasonable members of the community. The court cannot simultaneously claim to uphold public confidence and then define confidence entirely by reference to its own standards.
What “confidence” means
In an earlier publication in 2002, “Public Confidence in the Judiciary” (2002) 76 Australian Law Journal 558, Gleeson CJ stated that confidence in the judiciary requires “a satisfaction that the justice system is based upon values of independence, impartiality, integrity and professionalism, and that, within the limits of ordinary human frailty, the system pursues those values faithfully.” By the time of the 2007 speech, the same theme was restated as the ALRC described it: confidence in the courts amounts to “a state of reasonable assurance” that the qualities required of judges — competence, independence, and impartiality — and the standards of judicial process — fair and public — are being met.
These formulations are complementary. Taken together, they are careful and measured. They do not require certainty, or affection, or deference. They require reasonable assurance based on substantive values faithfully pursued. That is the standard a man or woman, approaching the courts as a stranger to the process, is entitled to expect.
The phrase “ordinary human frailty” is important. It acknowledges that judges are not neutral machines. The law’s concern is not that judges must be free from every human tendency that might colour their thinking, but that the structural and procedural arrangements of the courts must be sufficient to guard against those tendencies producing unfair outcomes.
This connects to the broader foundations of judicial impartiality identified in the ALRC report. Impartiality, and the appearance of impartiality, are described in that report as the “supreme judicial virtues” — “the fundamental quality required of a judge and the core attribute of the judiciary.” They find expression in the judicial oath, by which judges swear to “do right to all manner of people according to law without fear or favour, affection or ill will.” They are grounded in the common law, in the constitutional structure of Chapter III, and in international human rights law, including Article 14(1) of the International Covenant on Civil and Political Rights.
Procedural fairness as the structural guarantee
The principles that Gleeson CJ articulated in his extra-curial speeches find their operational expression in the doctrine of procedural fairness. The two pillars of that doctrine are the hearing rule (audi alteram partem — hear the other side) and the rule against bias (nemo iudex in causa sua — no man should be a judge in his own cause). Both are ancient, both are fundamental, and both are concerned with the same underlying value: that a man or woman whose rights or interests are affected by a decision must have a genuine opportunity to be heard, and must have that opportunity before a decision-maker who has no interest, prejudice, or predisposition in the outcome.
Gleeson CJ himself, in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, identified the two requirements of procedural fairness as the fair hearing rule and the rule against bias. In Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1, he observed that “fairness is not an abstract concept” and that “the concern of the law is to avoid practical injustice.” These are not incidental glosses. They reflect a jurisprudential approach under which procedural fairness is tested not against abstract ideals but against the concrete experience of the man or woman before the court.
The ALRC report on common law rights and freedoms notes that Chief Justice French identified five inter-related rationales for the duty to afford procedural fairness: it is an aid to good decision-making; it supports the rule of law by promoting public confidence in official decision-making; it reflects a first principle of justice and constitutionalism; it gives due respect to the dignity of individuals; and it is a guarantee of participatory democracy. These rationales converge on Gleeson CJ’s central theme: the courts derive their authority not from force, but from the trust of those they serve.
The fair-minded lay observer and the limits of judicial self-knowledge
The construct of the fair-minded lay observer, which Gleeson CJ and his co-signatories in Ebner placed at the centre of the apprehended bias test, has since been subject to sustained critical analysis. Some scholars and judges have argued that in application the construct becomes so laden with specialist legal knowledge and institutional confidence that it bears little resemblance to a genuine member of the community. The ALRC report acknowledged this concern directly, noting that the fair-minded lay observer can be “overloaded with so much knowledge” that the test produces outcomes “far removed from what members of the public would actually think.”
The response to this concern has come, perhaps most clearly, from the High Court itself. In Charisteas v Charisteas (2021) 393 ALR 389, the Court unanimously held that the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge.” The hypothetical observer is not conceived of as a lawyer but as a member of the public served by the courts. The Court noted, pointedly, that to imbue the hypothetical observer with professional appreciation of judicial practice “would defy logic and render nugatory the principle.”
This recalibration is precisely what Gleeson CJ’s 2007 speech called for. If the courts are to measure public confidence, they must look through the eyes of the public. The legal profession’s comfort with judicial processes, and its background acceptance of judicial integrity, cannot be imported wholesale into the objective test. The man or woman who comes to court for the first time, who has no experience of its conventions, and who has been told by a lawyer that the judge always decides a particular way — that man or woman’s apprehension is also a datum point, and the law must take it seriously.
The duty to sit and the duty to be impartial
A tension identified in the ALRC report, and implicit in the case law throughout, is the relationship between a judge’s duty to sit — to hear the matters assigned — and the competing obligation to stand aside where an apprehension of bias is firmly established. These duties are not in conflict in most cases, but in marginal cases they press against each other.
Gleeson CJ, together with Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson (2000) 201 CLR 488, observed that the rules and conventions governing judicial practice “are not frozen in time. They develop to take account of the exigencies of modern litigation.” This is a significant statement. It means that what ordinary judicial practice requires, and therefore what the fair-minded lay observer takes as the baseline for apprehension of bias, is itself subject to development. It is not a static inheritance from an earlier era. It must be tested against contemporary community expectations.
The ALRC report observed in this connection that some things which might concern members of the public outside the system may be dismissed by judges as insignificant. Gleeson CJ’s warning about the echo chamber is therefore directly material to the question of how the duty to sit should be calibrated. Judges are entitled to a realistic expectation that not every peripheral connection or passing remark will generate a sustainable apprehension of bias. But the threshold must be calibrated by reference to what the public, not the profession, considers acceptable.
The role of the legal profession as conduit
One passage in Gleeson CJ’s 2007 speech addressed the legal profession as an intermediary between the judiciary and the broader public. His Honour noted that litigants’ perceptions of the judicial process are strongly influenced by their lawyers’ perceptions. Lawyers tell litigants what to expect, predict outcomes, and express opinions about decisions. The judicial branch of government, he said, should “keep itself well informed about what the legal profession thinks of its performance; not because it can expect comfort from professional solidarity, but because the views of lawyers influence their clients, and many members of the wider public.”
This observation has a practical edge. The ALRC’s own survey of court users during its inquiry revealed that some litigants were told by their lawyers — sometimes by multiple lawyers — that a particular judge was known to always decide a certain way, to favour particular types of parties, or to be impulsive. Whether or not those characterisations were accurate, they are the medium through which public confidence, or its absence, is communicated. The judiciary cannot address public perception while remaining indifferent to the professional culture within which that perception is formed.
Confidence as a systemic, not merely individual, matter
The ALRC report noted that public confidence in the administration of justice is affected by far more than the impartiality of individual judges. It is affected by how cases are reported in the media, by under-resourcing of courts, by delays, and by appointments that are seen to be made for political reasons. Professor Sourdin pointed out in that inquiry that judges determine only a small fraction of civil matters and that judicial impartiality cannot be treated as the sole, or even the primary, driver of public confidence in the broader court system.
Gleeson CJ’s conceptual framework accommodates this point. His definitions of confidence, across the 2002 and 2007 publications, centre on the faithful pursuit of the systemic values of independence, impartiality, integrity and professionalism. The standard concerns the institution, its culture, its procedures, and its relationships with the other branches of government, not merely the state of mind of any individual judge on any individual occasion.
The constitutional foundations of judicial independence reinforce this. Under the Australian Constitution, federal judges hold office during good behaviour, cannot have their remuneration reduced, and can only be removed on an address of both Houses of Parliament on grounds of proved misbehaviour or incapacity. These protections exist, as Gleeson CJ noted in Fingleton v The Queen (2005) 227 CLR 166 at [38], not for the private advantage of judges, but “for the protection of judicial independence in the public interest.”
Practical injustice and the living law
The thread that connects Gleeson CJ’s extra-curial reflections on public confidence with his judicial pronouncements on procedural fairness is the theme of practical justice. The law’s concern is not with formal compliance but with real outcomes for real men and women who come to court. “Fairness is not an abstract concept,” he said in Lam. The echo chamber warning in the 2007 speech is another expression of the same idea. Abstract judicial satisfaction with the system’s integrity is not the measure. The measure is whether ordinary men and women, approaching the courts as strangers, have reasonable grounds for confidence that their matter will be decided fairly.
This is a demanding standard. It requires continuous attention to how the courts are experienced, not merely how they are designed. It requires listening — genuinely listening — to voices outside the profession. It requires the judiciary to test its own practices and conventions against the expectations of those it serves, and to revise those conventions where contemporary community standards have moved on.
Fiat justitia ruat caelum — let justice be done though the heavens fall. In the vision of public confidence that Gleeson CJ articulated, justice is not merely done. It is seen to be done. And the eyes through which it must be seen are not the eyes of the insider, but of the man or woman at the gate.
This article is intended as an educational and analytical commentary on publicly available judicial speeches and law reform materials. It does not constitute legal advice.
Last Updated 3 months ago
Views: 102