Australian judges should not be able to rule on self-recusal, review told
Judges should not be able to rule on applications to recuse themselves as it “demands an impossible level of impartiality”, a leading human rights legal service has told the Australian Law Reform Commission.
The commission is reviewing the laws in relation to judicial impartiality as a result of a case before the high court that involves the conduct of a judge and a barrister who maintained personal contact during a trial. The judge in that case denied an application to recuse himself.
The National Justice Project, a notfor-profit human rights legal service based at Macquarie University and directed by George Newhouse, said in a submission to the commission that the process of self-recusal should be abolished.
“The self-recusal process demands an impossible level of impartiality from the decision-maker as judges are required to identify and assess their own bias.
“Public perception of the integrity of the justice system is an important reason for the law of apprehended bias. However, a judge’s perception of what a fair-minded lay observer may view as partiality and what the public actually views as partiality may be quite different.”
On 22 April, the commission emailed an anonymous survey link to all 151 judges who held office in the federal court of Australia, the family court of Australia, and the federal circuit court of Australia. Sixty-one judges responded to the survey.
More than two in three indicated they have either never been asked to recuse/disqualify themselves (10) or have been asked, on average, less than once a year (33). For judges who received less than one request a year, the average reported occurrence was one request every four years.
Eight judges reported receiving requests more than once a year. The frequency of recusal applications received by judges was not significantly influenced by the court on which they sit, the commission reported.
More than half (24 of 47) of the judges who had been asked to recuse or disqualify themselves reported that most or all the requests came from selfrepresented litigants.
The commission survey also found that the vast majority of judges (50 of 59) believed that existing procedures for raising issues of bias encouraged
an appropriate use of bias applications. But six judges – five from the family court – believed the procedures encouraged an overuse of applications.
The National Justice Project believes that when such claims are raised at a later stage of proceedings, the application should be transferred to a duty judge to determine.
“This removes some of the challenges associated with the bias blind spot as an independent judge can apply the test for apprehended bias with an independent view of the proceedings and more easily recognise bias in another judge rather than relying on self-assessment.
“This change would also enhance the confidence of our clients and the confidence of the public more broadly that justice is being seen to be done.”
The high court is set to hear the case that prompted the review early next month. The commission, which was asked to review judicial impartiality by former attorney general Christian Porter, is due to hand down its final report two months after the high court delivers its judgment.
The court is hearing an appeal by a Perth real estate agent against a decision by the full family court not to grant him a retrial after details about the relationship between key players in the case were discovered.
The agent, known by the courts as Mr Charisteas, has been involved in family law proceedings against his former wife for almost 15 years. About $4m has been spent on legal fees.
Porter told The Australian after the review was announced last year that he referred the issue to the ALRC after numerous lawyers contacted him about the case and said there was a lack of clarity about acceptable communication between judges and barristers.