Allowing Biased Judges to Decide Cases is Against the Interests of Justice

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By Paul Gregoire and Ugur Nedim

The High Court ruled against an application for writs, official court orders, on 10 May 2023, which were submitted by Stephanie Coady, and included a request to overturn a 2022 Federal Court decision not to extend time to appeal a 2019 decision, as well as another to determine a matter of judicial bias.

Coady’s case involved her being disqualified at the last minute from the 49er Men’s Olympic class skiff event at the 2014 Sailing World Cup Melbourne regatta, even though she and her father had participated, as Yachting Victoria found her participation had breached Olympic gender rules.

Then Federal Circuit Court Justice Patrizia Mercuri heard the initial case in November 2018. And on 2 August 2019, she ruled that the disqualification hadn’t breached the Sex Discrimination Act 1984 (Cth), using the comparator test, which considered how a male might fare in similar circumstances.

Where bias entered into the case was Coadys claim that on inquiring into the delay in the delivery of the decision, they were told Chief Justice Willian Alstergren had intervened in the matter and the judge was also vice president of the Victorian Olympic Council, of which Yachting Victoria is a member.

The Coadys then directly requested that Alstergren and Mercuri provide details of any communications between them in relation to their case, which was denied. And the High Court went on to find that there was no basis for it to make any judgment on bias on the part of the chief judge.

However, has raised this case as a key example of why the recommendations the Australian Law Reform Council has made in relation to judicial bias be actioned immediately.

Prejudicial processes

Judicial independence and impartiality are core principles of the Australian justice system, and in accordance, there is a rule against bias established under common law, law determined via previous judicial rulings, and the measures involved in upholding it apply to judges, juries and other officials.

Two types of bias can be alleged. The first is actual bias, which requires proof that a decisionmaker approached a matter in a closeminded manner that may have been due to partiality in favour of a party or having a pre-existing prejudicial attitude. This requires evidence and is difficult to prove.

The other type is apprehended bias, which occurs when a concern has been raised about a judge that considers they could be prejudicial based on associations or past actions. As the ALRC explains it, this doesn’t require strong evidence or conclusions about factors influencing an outcome.

The High Court outlined in 2000 that the test to determine whether apprehended bias has occurred considers whether “a fair-minded lay observer with knowledge of the material objective facts” might hold a reasonable apprehension that a judge may not be impartial when ruling on a matter.

That court further determined, in 1994’s Webb versus The Queen, that there are four categories where a reasonable apprehension of bias might arise: interest, conduct, association or extraneous information.

And there are procedures to uphold the bias rule. One relies on the ethical obligation of judges to disclose any potential bias that may exist regarding their presiding over a case. Yet, once this has been done, it’s then up to the judge themselves to assess whether they should be replaced.

While if a party has a reasonable apprehension of bias, they can make an application for the judge to be removed. However, again, when such a contention is raised, it is then up to the judge whom the claim of bias has been alleged to decide on the outcome of the complaint.

Necessitated reform

Released in August last year, the ALRC’s Judicial Impartiality and the Law on Bias report made fourteen recommendations on how to improve the processes that are currently being applied to determine whether judicial bias is at play.

The commission considered whether “existing law about actual or apprehended bias remains appropriate and sufficient to maintain public confidence in the administration of justice”, and it found that, in line with a 2021 High Court decision, the existing law doesn’t require amending.

However, there is room for improvement in relation to transparency regarding the laws and managing of “potential conflicts or perceptions of partiality”, and in terms of the mechanisms now being relied upon to determine cases of judicial bias, including review and appeal processes.

A key ALRC recommendation is that Australia establishes a federal judicial commission, which would act as “a transparent and independent mechanism to consider litigants’ and lawyers’ concerns about judicial behaviour or impairment, including those that give rise to an apprehension of bias”.

If such an oversight body had existed, then perhaps the Coadys would have been able to take their concerns about judicial bias existing in their matter to the judicial commission, rather than have relied upon a belated appeal to the higher courts.

And in terms of the current situation that allows judges to rule on whether they themselves should be disqualified from a case, the ALRC recommends that the federal courts reform their processes, so the decision is made by another judge of the same court.

Another significant area identified as necessitating reform is the process by which federal judges are appointed, as the current process requires the attorney general to make the final decision, leaving the door open for politically-motivated judicial appointments.

The ALRC is calling for a more transparent process for the appointment of judges that involves decisions based on merit, which would see the publication of the criteria for appointments, as well as public calls for expression of interest and a commitment to diversity within the judiciary.

A clear case of bias

Then attorney general Christian Porter called on the ALRC to conduct the review into whether the laws and processes governing judicial bias need reforming, and promisingly, current attorney general Mark Dreyfus said, whilst in opposition, that he backs the idea of a judicial commission.

The case that triggered the ALRC review was 2021’s Charisteas versus Charisteas, which saw the High Court considering a protracted divorce case that had commenced in 2006 and had resulted in thirteen judgments prior to making it to the highest court in the land.

The case involved the husband’s legal team contacting the wife’s counsel after WA Family Court Judge John Walters had delivered his 2018 ruling into their matter, claiming that they’d heard that the barrister had engaged with the judge outside the court in a manner inconsistent with protocols.

The barrister explained that she had to rely on memory, but she could recall meeting for coffee with the judge four times since he’d been assigned the case, telephoned him five times over that period, as well as having sent numerous texts, although she claimed it all had nothing to do with the case.

The husband then sought a retrial based on apprehended bias, but the then Family Court of Australia dismissed that appeal.

However, on taking it to the High Court, the five justices presiding unanimously allowed the appeal and ordered a retrial, based on the ground of apprehended bias on the part of the judge.

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