Concern at union or boss ‘bias’ in court

Federal Court judge Mordy Bromberg ruled in favour of unions in 91 pert cent of industrial relations cases he presided over in a two-year period, according to conservative think tank the Menzies Research Centre.

In a submission to the Australian Law Reform Commission’s review of judicial impartiality, the centre said its analysis of proceedings between 2010 and 2020 found judge Robert Bromwich ruled for employers in 80 per cent of industrial relations cases and judge Richard White ruled for employers in 75 per cent of industrial relations cases.

The centre claimed judge John Reeves ruled in favour of unions in 80 per cent of his relevant cases and judge Berna Collier ruled for unions in 67 per cent of relevant cases.

Over the two-year period, the centre said there were 271 relevant cases of which 197 involved union, employee and employer representatives.

Of those cases, 109 dealt with matters of substantive law outside Australian Building and Construction Commission, Registered Organisation Commission and penalties cases and were therefore deemed relevant decisions in­volving a union as a primary party for the purposes of this model.

Of the 109 cases, a union was successful against an employer in 52 of them, or 48 per cent

Justice Bromberg, through a Federal Court spokesman, declined to comment on the ­submission.

A survey commissioned by the centre found that 5 per cent of Australians agreed that a judge who was the subject of an application of ­apprehended bias should determine that application.

Eighty-two per cent of respondents said they were concerned that judges might be making decisions based on motives other than a strict interpretation of the law, with 26 per cent describing themselves as “very concerned”.

The centre said the perception of judicial bias in the Australian courts has largely been avoided in the past but courts were increasingly being asked to make decisions that affected policy.

“As interest and activist groups begin to target our court system as a key pillar in their strategies to achieve political and social change, it is now more important than ever to ensure that any suggestion of ‘judicial activism’ is ­adequately addressed,” the submission said.

The submission referred to the recent case in Melbourne of Sharma & Ors v Minister for the Environment [2021] in which eight teenagers brought a case to prevent the approval of the Vickery coalmine extension in northern NSW.

The teens unsuccessfully argued that the minister owed them a duty of care not to cause them harm by granting the mine exemption.

“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,” the MRC submitted.

“Any suggestion that they are not truly independent and free from bias will quickly erode public confidence in the system.”