Although an allegation of actual bias may certainly be brought against a judge in an Australian court, it is not necessary, in circumstances where there are concerns about a judge’s lack of impartiality, for such an allegation to be made out in order for the judge to be disqualified from hearing the matter in question. Rather, under Australian law a judge may be disqualified if it can be demonstrated that a ‘fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide’ (the ‘reasonable apprehension of bias test’).

Furthermore, allegations of actual bias in Australian courts in respect of judges are rare. Rather, due to the relative ease of demonstrating that a reasonable apprehension of bias may exist with regard to a judge (compared with proving that he or she is actually biased), and also, possibly, due to the lower risk of offending a judge by arguing for the former rather than the latter, a party who has concerns about a judge’s impartiality will normally seek to demonstrate that there is a reasonable apprehension of bias in relation to the judge, rather than that the judge is actually biased.