Judicial Impartiality Final Report – still under wraps

The Australian Law Reform Commission handed its Judicial Impartiality Final Report to the Attorney-General, Senator Michaelia Cash on 6 December 2021.  The report is yet to be released.

The ALRC said it “look[s] forward to participating in public discussions on the recommendations in due course”, and no doubt do many others.

This Final Report was delayed a little to await the High Court’s decision in Charisteas [2021] HCA 29, of 6 October 2021, concerning a question of judicial impartiality in proceedings before the former Family Court: High Court confirms principles of judicial independence – Murrays Legal.

… to be tabled within 15 sitting days

Section 23 of the ALRC Act 1996 requires the Attorney to

“cause each report and interim report of the Commission on a matter that is the subject of a reference to be tabled in each House of the Parliament within 15 sitting days of that House after the Attorney-General receives it”.

Report not tabled

The report does not appear to have been tabled by Senator Cash.

See also: Australia on a slide? – Murrays Legal

Recusal applications

Meanwhile, recusal applications are being heard by the courts in the usual way, by the Judge against whom the application is made.

In one matter, the solicitor bringing the application said that, in an email to the Judge’s associate, “In my submission, this case is a prime example of why we need reform in the area of recusal applications”. Readers can make their own assessment: see De Varda v Scott in his capacity as the trustee of the bankrupt estate of de Varda (Summary dismissal) [2022] FCA 379 (18 March 2022) (austlii.edu.au) .

It may be that the ALRC will suggest law reform in relation to applications to judges by parties to recuse themselves on the grounds of bias, among other recommendations. The ALRC raised this issue in its 2021 paper Recusal and self-disqualification (JI2) | ALRC

 

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