Joe McIntyre

All law is politics. But law is not just politics. At its best, it can rise above: challenge and engage us to be better, to take responsibility and guide our society. Of course, it can collapse in the other direction: be reduced a tawdry imposition of blind power by the powerful.

Perhaps nowhere is this clearer than in the exercise of the judicial function, where that anguish of choice by the very human judge – replete with biases, personalities and integrity - can so profoundly shape the evolution of the law, and indeed the society from which it emerges.

The interplay between politics, partisanship and judging has been on stark display globally over the last few years. From Miller No 2 [2019] to Dobbs [2022], the role of judges (collectively and individually) in shaping law and society has rarely been more apparent. Similarly apparent has been our vulnerability to the quality of individual judge and their commitment to judicial values.

Despite their glamour, each case each represents only a fleeting moment. While it is easy to focus purely on the flash of a decision, it is sometimes critical to revel in the larger picture of the operation of the judicial system as a whole.

Andrew Lynch

The Australian Law Reform Commission (ALRC) is to be commended for its searching and inclusive approach to the topic of judicial bias in the recently released report of its Inquiry into Judicial Impartiality (Inquiry). The ALRC has not shied away from specific structural dimensions of the Australian court system that go to the impartiality of its judges and the confidence that the public must be able to repose in them if the courts are to fulfil their constitutional function.

A striking example of this is the Report’s substantial discussion and unambiguous recommendations in respect of judicial appointments reform. This is a topic that some may not have anticipated as one to emerge from the review. In this post, I consider the inclusion of judicial appointments and the significance of the ALRC’s contribution at this particular time, coinciding with the return of Mark Dreyfus QC to the post of Commonwealth Attorney-General.

William Isdale and Sarah Fulton

Last week, the Australian Law Reform Commission’s report, Without Fear or Favour: Judicial Impartiality and the Law on Bias, was tabled in the Commonwealth Parliament. It provides the first comprehensive review in Australia of the laws, practices and procedures relating to judicial impartiality and bias, and makes 14 recommendations for reform.

The Australian Law Reform Commission (ALRC) is grateful for the opportunity to contribute to this special AUSPUBLAW forum. The report is the product of the contributions of many, including litigants, judges, legal practitioners, and academics. We hope that the report generates debate and discussion regarding the merits (or otherwise) of the ALRC’s recommendations for reform, and we look forward to reading the contributions of the assembled expert commentators, as they share their views on this blog over the coming weeks.