Table of Contents

Judicial Bias In Australia

What is a Committal hearing

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.

What Is the Role of the Judge?

Impartiality and Neutrality


  • The cornerstone of the judicial system is the expectation that judges will be impartial and neutral in their decisions. Accordingly, the judge must bring an impartial mind in the courtroom.
  • Judges are required to make decisions based solely on the law and the facts presented in court, without being swayed by personal beliefs, political affiliations, or any form of prejudice.

Application of Law


  • Judges are responsible for interpreting and applying the law to ensure fair and just outcomes in legal proceedings.
  • They must analyse legal precedents, statutes, and relevant case law to arrive at their decisions.

Adjudication Process


  • Judges preside over trials and hearings, managing courtroom proceedings and ensuring that both parties have a fair opportunity to present their cases.
  • They issue rulings, determine sentences, and provide written judgments outlining the legal basis for their decisions, usually given during a judge alone trial.

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.


Actual bias


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 [2018] NSWCA for further elucidation.


Apprehended bias


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 [2020].


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 Bias Cases Australia Examples

  • As established in the case of Dovade Pty Ltd v Westpac Banking Corporation, a judge’s status as a customer of a bank involved in litigation generally does not warrant disqualification. However, disqualification may be appropriate if the judge maintains a particular association with the bank or has a sense of obligation to, or bias against, the bank.
  • As per the case of Smits v Roach (2006), if a judge has a familial relationship with a party involved in the case or with one of the party’s legal representatives, especially if that representative is actively participating in the litigation, it typically constitutes a valid reason for disqualification. However, when citing an association with an individual having an interest in the litigation as a basis for disqualification, it must be demonstrated that there exists a logical link between the cited concern and the apprehension of a departure from impartial decision-making.
  • In the case of Bakarich v Commonwealth Bank of Australia [2010], it was determined that the judge’s prior professional association with a legal representative involved in the case, even if it occurred over 14 years prior, did not constitute a basis for disqualification.

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Safeguards Against Judicial Bias in Australia



  • Judges have the responsibility to recuse themselves from cases in which they have a personal or professional conflict of interest.
  • This ensures that impartiality is maintained throughout the legal process.

Appeals Process


  • The appellate system allows for higher courts, including the high court of Australia, to review decisions made by lower courts, providing a check against potential bias.
  • When an intermediate appellate court is confronted with claims of apprehended bias, it should prioritise addressing the bias issue, as the inevitable consequence of bias being proven would be a retrial. The process for assessing bias within a multi-member court remains unresolved. While a judge’s refusal to grant a disqualification application can serve as a basis for appealing the substantive judgment, traditionally, it was held that an appeal couldn’t be made solely on the grounds of a rejected disqualification application. Nonetheless, a litigant would typically have the option to identify an interlocutory order on which to base an appeal. This can also occur during a jury trial.
  • In cases where apprehended bias is established in a multi-member court, even if the initial decision was actually unanimous, the full court will lose its authority to preside over and make a judgment on the appeal.

Judicial Conduct Commissions


  • These bodies investigate complaints of judicial misconduct, including allegations of bias, and take appropriate action if necessary.

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.

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