Without Fear or Favour

Judicial impartiality is central to the exercise of judicial power, crucial to the proper functioning of adversarial trials, and key to perceptions of fairness. This speech draws from the Australian Law Reform Commission’s (‘ALRC’) Inquiry into Judicial Impartiality and explores whether the judicial oath to exercise a judge’s duties ‘without fear or favour’ is of itself sufficient to maintain the public’s confidence in the judicial process, or is something more required? In answering this question, the speech considers the foundations of judicial impartiality in national and international law, and the role of impartiality in judicial method; explains the importance of judicial impartiality in both its instrumental and inherent values; defines the scope of judicial impartiality with reference to examples; and finally, details the ALRC’s Inquiry and its key findings. In concluding, the speech acknowledges that Judges may be tempted (whether consciously or unconsciously) to depart from proper judicial decision-making methodology. It is therefore important to ensure that there are structures and practices to insulate judges from potential threats to impartiality — many which fall within the framework of guarantees of judicial independence. In this way, it might be possible to secure greater confidence in the judiciary and the judicial system.