Judicial Impartiality – needs work; report

Andrew L. Urban.

The majority of Australians (82%) don’t trust judges’ impartiality, according to the Menzies Research Centre’s (MRC) submission on Judicial Impartiality to the Australian Law Reform Commission (ALRC), which was tasked with examining the subject by former Attorney General Christian Porter; the ALRC will lodge its report by September 31, 2021. 

In one example examined in the report, the ‘evidence’ of a single researcher from Australian National University was sought by Justice Bromberg, in the recent case of Sharma & ORS v Minister for the Environment [2021]4, in which eight 16-year-old Victorian residents brought a case to prevent the approval of the Vickery coal mine extension in northern NSW. The plaintiffs alleged that the Minister owed them a duty of care not to cause them harm by granting the mine exemption.

Ultimately, the Sharma claim was rejected. (Ed: we can speculate that had it not been, the case would have been appealed to the High Court; see below.) However, Justice Mordecai Bromberg’s judgement included the following sections:

  • The effects of Greenhouse Gases upon the Earth’s Surface Temperature;
  • The Earth System, Carbon Sinks, Feedbacks, The Tipping Cascade and ‘Hothouse Earth’;
  • Effects to Date of Human Emissions of C02;
  • Future Effects – The Future World Scenarios;
  • Effects of a 2°C Future World;
  • Effects of a 3°C Future World;
  • Effects of a 4°C Future World;
  • What Needs to be done to Achieve a 2°C Future World

Justice Mordecai Bromberg

In his judgement Justice Bromberg observed that: On the evidence before me*, it is undoubtedly likely that some of the Children, and perhaps many hundreds or thousands of them, will be killed or injured by future climate change induced bushfires on the Australian continent. However, taking into account the capacity of fire smoke to spread, as demonstrated by evidence of the Black Summer fires, it is reasonably foreseeable that all Australians will be exposed to the risk of ill-health from an atmosphere polluted by smoke from one or more bushfires. That is particularly so in circumstances, which are also reasonably foreseeable, where bushfires induced by climate change will wipe off the face of the Earth most of Australia’s eastern eucalypt forests in a 4°C Future World.

* referring to the researcher from the ANU

Justice Bromberg, once a factional member of the ALP and a one time candidate, is perhaps best remembered as the judge who found against Andrew Bolt in a case involving Section 18c of the Racial Discrimination Act. Labor Senator Kimberly Kitching was “very surprised” when Bromberg decided to hear Herald Sun columnist Bolt’s racial discrimination case, given Bromberg’s close relationship with the Labor Party … She told Bolt, according to the MRC report: “He was an active ALP person, he was active enough that he was in a faction, he ran for pre-selection,” she said. “Obviously he would have had some views about you (Bolt), and perhaps he was not the best person to hear your case.” (For readers in faraway countries, Andrew Bolt is well known as a Conservative, and frequent target of Labor vitriol.)

For the purposes of this submission the Menzies Research Centre developed a model analysing decisions made by 33 Justices of the Federal Court of Australia over the period from 1 July 2018 to 1 July 2020 in Employment/Industrial Relations cases. “In the 11 cases heard by Justice Bromberg involving a union, he has found in favour of the union 10 times or 91 per cent of the time; 43 percentage points above the average.”

The report adds: “Our analysis identified five decisions involving Justice Bromberg on industrial relations matters that have been overturned by the High Court.” (That’s 5 out of 11.) Rather optimistically, the MRC report states: “This proposal will also help to reduce costly appeals to higher courts such as those that end up in the High Court of Australia.”

This MRC submission is made “at a time when there is increasing use of the courts for political purposes. Activist groups, pursuing specific agendas, have identified, promoted and resourced campaigns to employ the power of the courts for their purposes.”

The MRC report noted that “If the trend continues and the courts are increasingly used as a vehicle for what are essentially political campaigns it is essential that the courts both maintain their independence and be seen to do so. Any suggestion that they are not truly independent and free from bias will quickly erode public confidence in the system.”

Erode it even further, perhaps, given that 82% already distrust judicial impartiality? Should the absurdity and political payload of the claim have prevented it from getting into a court of law?

Such questions are raised by the contents of the MRC report, put together by its Chief of Staff, James Mathias.

The Report’s Recommendations are:

  1. Court staff compile and report in real time the judgment records of Judges in specific areas of law and the parties involved in the case. This should be displayed as a percentage.
  2. Data collected in accordance with recommendation 1 would assist court staff in the allocation of cases as part of their existing precautionary administrative practices identified in the consultation paper. Any claims of bias or apprehended bias should be determined by an independent judicial officer and not by the judge who is the subject of the application.

These recommendations are driven by what it has found. “A survey commissioned by the Menzies Research Centre conducted by True North Strategy has found that 82 per cent of Australians are concerned that judges may be making decisions based on motives other than a strict interpretation of the law. 26 per cent of people said they were very concerned about judges decision-making being made on motives other than a strict interpretation of the law.”

The MRC report quotes James Allan from the University of Melbourne: “Judicial activism has all sorts of long-term bad consequences not immediately obvious to many people who happen to find congenial the outcomes of particular decisions aligning with their own first-order political preferences. Such short-sightedness can be costly, most obviously in terms of the long-term inroads it makes into Australia’s wonderful democratic traditions.”

The MRC Report publishes the following table of results:

Question 1
“The federal government has launched an enquiry into the independence and impartiality of federal court judges. How concerned are you that judges may be making decisions based on motives other than a strict interpretation of the law?”

Figure 2 is a dashboard of the judges who have heard the top ten highest number of cases during this period, their appointment date, and the party of the government that appointed them.

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11 Responses to Judicial Impartiality – needs work; report

  1. Garry Stannus says:

    In the tradition of Evan Whitton, I’ve followed my nose, put things in order, et voilà… Gees – what to make of this article? The Liberals … Champions of Judicial Impartiality? Some notes… but be warned, some material contained in ‘Further Reading’ links is quite distressing.
    PS: I will forward any of the cited documents referred to in my extended comment to any person who makes a bona-fide and self-identified request to access info. that I’ve referred to. However, I’ve taken pains to ensure that all such info is already available via the links – garrystannus@hotmail.com

    -Andrew Bolt: It doesn’t seem unfair to ask whether the following terms are applicable to him: ‘acerbic’ or ‘judgmental’, ‘right-wing’, even ‘shock-jock’? Read his wiki entry and find out… [https://en.wikipedia.org/wiki/Andrew_Bolt]
    Background: Bolt lost a legal action in the Federal Court for contravening the Racial Discrimination Act [Eatock v Bolt / https://en.wikipedia.org/wiki/Eatock_v_Bolt%5D. This was a class action decided by Justice Bromberg.

    -Mordecai ‘Mordy’ Bromberg: [https://en.wikipedia.org/wiki/Mordy_Bromberg] was appointed to the Federal Court in 2009. He had a known Labor background, having stood unsuccessfully once for Labor pre-selection and having had membership/involvement with the party. Subsequently, his judicial decisions became of interest to the Menzies Research Centre.

    the Menzies Research Centre is a Liberal Party affiliate, describing itself as an ‘independent think tank associated with the Liberal Party of Australia’. [https://www.menziesrc.org] The Centre’s approach to national issues can be seen by viewing the reports published at https://www.menziesrc.org/reports.
    The particular report which seems to be the major source for Andrew’s article, is contained in a submission by James Mathias to Christian Porter’s, Australian Law Reform Commission, ‘Review of Judicial Impartiality’. It can be read here (upon registering for a free? Purchase, after scrolling down through the reports at the following link … https://www.menziesrc.org/reports), entitled:
    Judicial Bias Submission_Menzies Research Centre.pdf
    An earlier (June 2020) article deals with an associated theme: https://www.menziesrc.org/report-store/litigation-nation.

    -Christian Porter: Liberal member of WA state parliament, then federal member, becoming A-G in 2017, losing the position (30Mar2021) in the wake of allegations of historic rape; previously as Minister for Social Services had overseen the ‘Robodebt’ attack on welfare recipients; had accused ABC of systemic bias, launching defamation proceedings against the ABC, then in abandoning the action, sought to have documents – lodged with the courts – destroyed. He recently [July2021] seems to have been successful in having the ABC’s defence documents suppressed: “[The order] is made on the grounds that it is necessary to prevent prejudice to the proper administration of justice,” Justice Jagot* told the court. [https://www.abc.net.au/news/2021-07-30/court-rules-on-abc-defence-christian-porter-defamation-case/100336388]
    [https://en.wikipedia.org/wiki/Christian_Porter], https://www.theguardian.com/media/2021/jun/01/abc-hits-back-at-christian-porter-claim-it-regrets-four-corners-story-at-centre-of-defamation-court-case;
    This is the same Christian Porter who launched the ‘Judicial Impartiality’ probe:
    https://www.alrc.gov.au/inquiry/review-of-judicial-impartiality/terms-of-reference/

    I, the Hon Christian Porter MP, Attorney-General of Australia, having regard to:
    • the importance of maintaining public confidence in the administration of justice for all Australians […]

    -James Mathias: In 2012, as a 17 year old student, became involved in a dispute with the Labor member for Albert Park (Melbourne) accusing that member of pro-Palestinian sympathies … an apparent politically-based attack, given that Albert Park has a significant Jewish population and that at the time, he was doing an internship with David Southwick, the Liberal Member for Caufield (Melbourne). Southwick himself is Jewish and apparently anti-Palestinian. He once twittered:
    “Something is seriously wrong when we have Palestinian flags being flown in Melbourne. #Springst
    @aus_jewishnews
    4:27 PM · Nov 15, 2018 from Melbourne, ”
    Mathias then became the youngest Liberal to have run for the Federal seat of Holt (and on failing in 2016) took a position with the MRC as Executive Officer in 2018, then in 2019 became its Chief of Staff.
    In that position, Mathias apparently commissioned a ‘report’ from True North Strategy which began thus: “4 IN 5 AUSTRALIANS ARE CONCERNED THAT JUDGES MAY NOT BE IMPARTIAL” [Judicial Bias Submission_Menzies Research Centre.pdf ] It is this report which forms the basis of Andrew (Urban)’s article.

    -‘True North Strategy’ :
    http://www.auscompanies.com/en/38645974607/TRUE-NORTH-STRATEGY-PTY-LTD
    [this company, publishing ‘survey’ results for MRC, “has been trading for less than a year” (was added to ABN 18Nov2020.]

    ‘True North Research’: a company (not connected with ‘True North Strategy’) found it necessary to issue the following media release:

    STATEMENT FROM TRUE NORTH RESEARCH
    ​It has come to our attention that reports of a political nature, based on audience research, are being promoted to the media under the name True North Strategy.  This research has not been conducted by True North Research.
    ​There has been confusion in the market between our brand and theirs, potentially causing us reputational damage; a situation which we are taking measures to address.
    True North Research is an established brand, with a strong reputation for independence, impartiality and integrity. With more than twenty years’ experience, we are apolitical and focus on unbiased audience samples.
    All our analysts are members of the Research Society and adhere to its Code of Professional Behaviour https://researchsociety.com.au/standards/code-of-professional-behaviour
    True North Research

    https://www.truenorthresearch.com.au/media-releases
    [https://researchsociety.com.au/find-an-expert/qpr-list]

    True North Strategic Communication: an unconnected research body serving northern Australia.

    -Senator O’Neill labelled the MRC submission “an undergraduate essay that would fail”. Having read the submission and the ‘survey’ on which it was based, I am tempted to agree.
    https://www.theguardian.com/law/2020/jul/13/liberal-thinktank-submission-on-class-actions-labelled-an-undergraduate-essay-that-would-fail

    FURTHER READING:
    http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2021/560.html
    Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021)

    https://www.jdsupra.com/legalnews/federal-court-of-australia-rules-that-2669750/
    [this is not a bad summary of the Sharma decision – gfs]

    https://me.abcfriendsvic.org.au/index.php/2021/04/07/the-australian-trumpets-dodgy-research/
    The Australian trumpets dodgy research
    The so-called journalists at Rupert Murdoch’s “The Australian” seem more than willing to stretch the truth (or worse) when it comes to attacking the ABC.
    But a recent report, featuring a survey conducted by the Menzies Research Centre, was one of the most flagrant examples of invention seen yet…

    https://researchsociety.com.au/find-an-expert/qpr-list

    https://www.alrc.gov.au/inquiry/review-of-judicial-impartiality/submissions/

    https://www.abc.net.au/news/2021-07-30/court-rules-on-abc-defence-christian-porter-defamation-case/100336388

    https://www.theguardian.com/australia-news/2021/jul/30/christian-porter-defamation-case-judge-rules-abc-defence-file-wont-be-made-public

    https://independentaustralia.net/life/life-display/rape-dossier-release-and–private-criminal-charges-haunt-porter,15237

    https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/dyer-v-chrysanthou/Exhibit-1-redacted-as-at-25-June-2021-Redacted.pdf

    https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/dyer-v-chrysanthou/Exhibit-1-redacted-as-at-12-July-2021.pdf

    https://www.crikey.com.au/2021/03/12/kate-bright-brilliant-funny/

    *Justice Jagot, in the preceding year (2020) gave a very detailed (226 pages) decision on a defamation case brought by a former Doctor, John Herron (and a Dr Gill) against the author and publishers of a book, Fair Game: The Incredible Untold Story of Scientology in Australia (HarperCollins Publishers Australia Pty Limited, 2016). The applicants sought to show that the book had defamed them by its adopting a Royal Commission’s acceptance of “a Scientology version of events”. Jagot J., finding for the respondents, dismissed the application:
    https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1687
    [a relevant tweet-thread at: https://twitter.com/kate_mcclymont/status/1331403859747508224%5D

    • andrew says:

      In the interests of completeness, I have now added a couple of tables of some of the results of the survey in the MRC Report (see above).

      • andrew says:

        A further amplification for completeness:
        When the ALRC announced its Judicial Impartiality Review, it stated (in part):
        This review comes as the High Court considers a high-profile case on whether communications between a judge and a lawyer while proceedings were ongoing gave rise to apprehended judicial bias. (The case was a Family Court matter from Perth – see below.)

        Court documents show the Concise statement of the issues (Part 1): “Having regard to the disclosure made by trial Counsel for the First Respondent (Counsel) in her letter to the Appellant’s solicitors dated 22 May 2018 (Letter), as well as the circumstances of the disclosure made therein, might a “fair-minded lay observer” reasonably apprehend that the trial Judge might not have brought an impartial mind to the resolution of the proceedings?”

        Appellant P6/2021 P6/2021 Page 2 IN THE HIGH COURT OF AUSTRALIA PERTH REGISTRY BETWEEN: G CHARISTEAS Appellant and Z V CHARISTEAS First Respondent YWB Pty Ltd Second Respondent LW BANDY Third Respondent A CHARISTEAS (by her Case Guardian R Elias) Fourth Respondent E A CHARISTEAS Fifth Respondent K A SOTIROSKI Sixth Respondent SM MANOLAS Seventh Respondent LW BANDY & A CHARISTEAS (as Executors of the Estate of D Charisteas) Eighth Respondent

  2. Jerry Fitzsimmons says:

    Rest assured Owen, you’re not the only one who’s mind is blown with the research, , knowledge and stats. but, being made aware of them all is what can be more confusing when we continue to hear of similar and even worse kinds of injustices being committed. For all of our learning there are incredible examples of bias occurring before our very eyes. Listen to a politician being interviewed. Listen to journalists reporting government press releases. Listen to judges advising juries. Listen to the silence of co-workers when bullying is prevalent in the workplace and it goes on. Bias I’m afraid is all around us but Owen, it seems your mind has a good understanding of openness and I applaud you for it. I, like you, live in the real world where we can only hope to grow to be a better person. I have certainly lived with my bias’s.

    • owen allen says:

      Many thanks Jerry. Obviously I missed your comment.
      Bias, will research. I don’t fully understand except from perhaps, ” I don’t trust white Australians.” Especially from Tasmania. Is that biased
      Now if I said I don’t trust black Australians, is that biased, or discrimination or both

  3. Maris Valentine says:

    Thank you Andrew for your constant efforts and exposure of various forms of injustice.

    We should expect impartiality from judges but realistically we should also, all be aware that we all have our own biases and that all history is told from the biassed perspective of the “winner”, although it may well be decried from the biassed perspective of the “loser”. What is crucial, is to recognise these biases in ourselves and others. Regrettably, not many of us want to admit our bias, even if we recognise it. And it was really bad news for Bolt not to assume that perhaps Bromberg might carry some bias against a known Conservative.

    I am also interested in the self-serving belief of many/maybe most, judges who believe that their experience in life and on the Bench gives them a greater ability to recognise truth-tellers from liars based on demeanour. A similar problem seems to exist with police.

    This is just a different form of partiality, because most people cannot pick truth-tellers from liars by demeanour, better than about 55% of the time and judges and police are worse than average, at around 45% accuracy. Obviously, care is required, particularly when historical allegations are being considered. [“I’m Innocent: Effects of Training on Judgements of Truth and Deception in the Interrogation Room” by Saul M Kassin and Christina T. Fong in 1999. P.508 & 51].

    Just my contribution to this field of knowledge.

    • andrew says:

      Thanks Maris… As it happens, I’m reading the book Talking to Strangers by Malcolm Gladwell which explores just that…about how recognising truth-tellers from liars is so difficult. We tend to default to truth, he argues … As for judges, in my limited experience I have found that judges seem woefully un-worldly and lacking in ‘smarts’. That’s a terrible generalisation, and I certainly don’t mean to include ALL judges.

  4. Brian Johnston says:

    Bromberg is obviously on the side of the warmist alarmists.
    AGW is a scam. CO2 is not a pollutant. It is the essence of life.
    Bromberg supports the Globalist Socialist agenda.
    Habibillo Abdussamatov said in around 2012 that the next mini Ice Age begins in 2017.
    There is no science to support Bromberg’s view. He must surely know it.
    I could say more.
    Incidentally, the oil in the ground is not fossil, it is abiotic.

    • John Biggs says:

      AGW? Where is that mentioned apart from being ‘a scam’?

      Brian I first thought your comment was just being sarcastic but it seems not. Bromberg twice says “reasonably foreseeable”, ‘given the science’ being understood. At least he understands the science …

  5. Owen Allen says:

    Wow Andrew, this research and knowledge blows my mind.

    History just keeps repeating, but we don’t stop trying and pushing forward.
    Thank you and your team, excellent work.

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