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The judicial system is the cornerstone of any democratic society, tasked with upholding the rule of law and ensuring justice for all. In Australia, judges play a pivotal role in this system. However, the concept of judicial bias has been a subject of debate and scrutiny. Judicial bias can exist in Australia and there are safeguards for this.
Impartiality and Neutrality
Application of Law
Definition of Judicial Bias
Judicial bias refers to a judge’s preconceived notions, prejudices, or predispositions that may influence their decision-making process, leading to unfair or partial judgments.
Types of Judicial Bias
Bias can manifest in either actual or perceived forms.
If a judge is influenced by actual bias, they would be incapable of upholding the Judicial Oath and would be disqualified from presiding. In such instances, the central inquiry pertains to whether there exists factual evidence of bias. Refer to the case of Collier v Country Women’s Association of NSW  NSWCA for further elucidation.
The criterion for ascertaining whether a judge should recuse themselves due to apprehended bias is the objective “double might” test, as articulated in Johnson v Johnson (2000): whether an impartial and unbiased perspective, held by a reasonable, fair-minded observer, might reasonably anticipate that the judge could approach the resolution of the pertinent question without partiality or prejudice [emphasis added].
The assessment of the pertinent question is not to be conducted retrospectively, but rather at the juncture of the event or events alleged to give rise to such a possibility initially, as established in Feldman v Nationwide News Pty Ltd .
Application of this test, that is, test for apprehended bias, entails two sequential steps: firstly, it necessitates identifying what is contended to potentially sway a judge to decide a case based on considerations other than its legal and factual merits. Subsequently, a “logical connection” must be expounded between that particular matter and the apprehension of a deviation from a decision made on the case’s merits. Once these two steps have been taken, the reasonableness of the alleged apprehension of bias can be ultimately evaluated.
Judicial Conduct Commissions
The role of judges in Australia’s legal system is crucial, demanding impartiality, fairness, and a commitment to upholding the rule of law. While instances of judicial bias are relatively rare, they can have significant consequences for the individuals involved and erode public trust in the justice system. It is essential for the legal community and society at large to remain vigilant in holding judges to the highest standards of integrity and impartiality.
Through continued scrutiny and adherence to established safeguards, the Australian legal system can maintain its reputation for fairness and justice.
Impartiality of the law is important aspect of the criminal justice system. If you have been charged with a serious indictable offence and require legal advice, contact our criminal lawyers in Burwood. Contact us for free legal advice in NSW 24 hours, for up to 15 minutes on the phone.