Handbook for Judicial Officers — Actual or apprehended bias and unconscious bias

Calls for gender equality found public expression during this era of political and social upheaval. In France, Olympe de Gouges published her Declaration of the Rights of Woman and the Female Citizen in 1791. In Britain the following year, Mary Wollstonecraft published her arguments for substantive equality and a rational education for women in A vindication of the rights of woman: with strictures on political and moral subjects.^[5]

While equality has remained the aspirational objective of freedom from oppression and discrimination, the scope of equality has evolved over time. What was regarded as gender equality by Mary Wollstonecraft and Olympe de Gouges, or by the suffragettes in the 19th century, or by the second wave of feminism 60 years ago that broadened the debate about women’s human rights, has changed with community values. Legal recognition of gay marriage is a contemporary example of the evolving scope of equality. After considerable community debate and a national postal survey, the Australian Parliament amended the Marriage Act 1961 on 9 December 2017 so that the right to marry was no longer determined by sex or gender.

Gender inequality has a diversity of meaning both as to its impact and how society should counter it. It embraces the unequal treatment of men and women (that is, discrimination), inequality of opportunity, and inequality of outcome. Discrimination arises out of both the “unequal treatment of equals, and conversely ... the equal treatment of unequals”.^[6] This expresses the Aristotelian idea of formal equality and underlies the basis of direct and indirect discrimination. Gender bias, a corollary of unequal treatment, has been defined as a “form of subtle but potent discrimination”,^[7] and as systemic in nature.^[8] Gender bias takes many forms. It manifests in both individual actions and attitudes, in cultural traditions, in institutional and corporate practices, and in the language of the elite. For example, the original Anti-Discrimination Act, enacted in NSW in 1977, did not use gender neutral language, instead employing the masculine third person pronoun. It was unlawful for an employer to discriminate against a person “on the ground of his sex” [emphasis added].^[9] The Act was only changed to gender neutral language 17 years later in 1994.^[10]

Gender bias includes undervaluing or not valuing domestic contributions;^[11] lack of equal opportunity in the workforce; lack of diversity in senior roles including judicial appointments;^[12] inequities in pay scales;^[13] reliance on stereotypical attitudes about women and their roles, capacity and ability; the privileging of a male-defined norm, for example, the reasonable man test used in the common law;^[14] the disproportionate numbers of female victims of domestic violence and sexual assault;^[15] the significant underreporting of domestic violence, sexual assault and sexual abuse;^[16] and the lack of procedures, until relatively recently, to minimise the trauma for victims in sexual assault trials.^[17]

The Australian federal government began to address the issue of substantive equality for women in the reformist decade of the 1970s. This was the era of social liberalism when Australia turned its back on the moral conservatism of the Menzies era.^[18] No-fault divorce was introduced^[19] and free tertiary education. As has been observed, the 1970s saw the development of a “robust civil society [that] enabled feminism in its many guises to emerge and establish itself as a political force for change”.^[20] In NSW, the State government enacted the Anti-Discrimination Act in 1977. This included Parts III and IV which proscribed discrimination on the ground of sex and marital status in employment and in the provision of specified goods or services subject to certain exceptions.

The following decade saw the Commonwealth of Australia enacting the Sex Discrimination Act (“SDA”) in 1984 and the Affirmative Action (Equal Opportunity for Women) Act in 1986. These Acts gave effect to the Commonwealth of Australia’s obligations under the Convention on the Elimination of all Forms of Discrimination against Women (“CEDAW”) which Australia had ratified in 1983.^[21]

The early 1990s saw the issue of equality for women firmly on the federal government’s policy and legislative agenda.^[22] The government funded the National Committee on Violence Against Women which published a highly regarded report in 1992, the National strategy on violence against women.^[23] During the election campaign in February 1993, the Prime Minister announced the federal government’s “New national agenda for women”.^[24] An element of this agenda was the reference to the Australian Law Reform Commission (“ALRC”), chaired by the Honourable Elizabeth Evatt AO, to recommend whether legislative or procedural changes should be made to “remove any unjustifiable discriminatory effects of those laws on or of their application to women with a view to ensuring their full equality before the law”.^[25] This culminated in the 1994 two-volume report, Equality before the law: justice for women and Equality before the law: women’s equality.^[26] In its report, the ALRC reviewed the scope and operation of the SDA and found that the Act fell far short of achieving the substantive objective of equality in law that CEDAW required. The ALRC recommended numerous amendments to the SDA as well as a constitutional guarantee of equality.^[27] The latter has not occurred. The ALRC report concluded that:^[28]

It is axiomatic that the law is administered fairly. Judicial officers in NSW take an oath to administer the law without fear or favour, affection or ill will.^[29] The word “equality” is not specified in the judicial oath but it underpins the oath conceptually. Equal justice is an aspect of the rule of law.^[30] Equal justice requires that like cases be treated alike, but where there are relevant differences, allowance should be made for them.^[31] This expression is derived from the Aristotelian principle of formal equality, namely, that “things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness”.^[32] Equality before the law has come to be recognised that access to, and the delivery of justice “requires understanding of and sensitivity to the special requirements and disabilities of particular sections of the community”.^[33] The law has to address both direct and indirect discrimination. To render justice equally, the law must deal with direct discrimination and take account of difference. Indigenous people, ethnic and religious minorities, people with physical and mental disabilities, vulnerable people including children, women, lesbians, gay men, bisexuals, sex and gender diverse people have come to be recognised as having special requirements in the justice system.^[34]

Those entrusted to administer the law fairly are informed by their inherited and learned values, cultural assumptions, and ideologies. Although judicial neutrality is a central tenet of the rule of law, it is acknowledged that judicial officers are not ideologically or value-neutral. Unconscious judicial bias, built on cultural values and gender and class assumptions, influences the judicial decision making-process.^[35] As North J put it:^[36]

Public expectations have shifted in the human rights’ dominated post-war era to require justification for the exercise of power.^[37] The exercise of judicial authority requires justification. In their decision-making, judicial officers need to be aware of the values of their society so that they can convincingly identify what is in the public interest, and what is “reasonable” and “fair”; in other words, the core values of their society.^[38]

Feminist legal scholarship began to deconstruct legal discourse in the 1980s, questioning the claim of law to be rational, objective and neutral.^[39] It was only a matter of time before the issue of gender bias found its way onto the judicial agenda. North America led the way in raising judicial awareness in the common law world with the work of the National Association of Women Judges’ National Task Force on Gender Bias in the Courts. From 1982, State Chief Justices across the United States appointed task forces to investigate gender bias in their courts and recommend reform to legislation, judicial education and the administration of justice. The first task force was appointed in New Jersey in 1982 and by the end of the 1980s, five American States were engaged in implementing the recommendations of their respective task forces and developing sessions in judicial education programs to address gender bias with a focus on the role of attitudes and values in judicial decision-making.^[40] In Canada, in 1986, a national judicial conference on equality^[41] led to the publication in 1987 of Professor Kathleen Mahoney^[42] and Sheilah Martin’s book, Equality and judicial neutrality.^[43] The Western Judicial Education Centre, a project of the Canadian Association of Provincial Court Judges, developed programs on gender, race and class bias issues in Canadian judicial training programs using a variety of adult learning techniques.^[44]

The first recorded mention of the need to address gender bias in the administration of justice in Australia was on 14 August 1992 when the Supreme Court of Western Australia convened a seminar on this subject.^[45] The guest speaker, Professor Mahoney, spoke of the Canadian experience and the Chief Justice of Western Australia, the Honourable David Malcolm AC, suggested that Australia had much to learn from the Canadian experience in educating judicial officers about the need to eliminate bias.^[46] Professor Mahoney proved to be a trailblazer in raising judicial awareness of gender issues, returning in June 1993 on a visit organised by the National Institute for Law, Ethics and Public Affairs (based at Griffith University, Queensland) to conduct workshops and lectures on gender, race and class bias in the administration of justice in most Australian States.^[47] During this visit, Professor Mahoney spoke at an inter-curial seminar in Sydney that the Judicial Commission of NSW convened.^[48]

Professor Mahoney’s 1993 visit coincided with considerable and intense media scrutiny of the Australian judiciary due to a series of gender-biased comments that judges had made during criminal proceedings.^[49] The most notorious remarks were those of a South Australian Supreme Court judge, Justice Bollen, who during a marital rape trial commented that “rougher than usual handling” was acceptable when a husband was endeavouring to persuade his wife to engage in sexual intercourse.^[50] The then Prime Minister of Australia, the Honourable Paul Keating, publicly denounced the comments, stating that he was “shocked to read that a judge … had explicitly condoned the use of violence by a man against his wife”.^[51] A Victorian Supreme Court judge, who in passing sentence on a man who had pleaded guilty to one count of the aggravated rape and one count of the attempted murder of a 17-year-old schoolgirl, said a sentence significantly less than the maximum for the rape offence was warranted as the girl “was not traumatised by the event, indeed was probably comatose at the time”.^[52] A Commonwealth Senate Standing Committee on Legal and Constitutional Affairs was briefed to consider whether the “recent publicity surrounding judicial comment in sexual offence cases is a proper reflection of a failure to understand gender issues by the judiciary; … and the appropriate response to any such failure”.^[53]

The committee’s conclusion in its 1994 report was that overt prejudice on the part of the judiciary was not a general problem, but it was “wider than a handful of isolated instances”.^[54] The committee, however, stated that systemic gender bias had to be addressed as a “real, significant but largely unconscious, problem”^[55] in the legal system, in legislation and case law, and in the use of “antiquated and inappropriate gender myths and stereotypes when judges sum-up to juries”.^[56] The committee recommended changes to the process of judicial selection and various initiatives in judicial and legal professional education.^[57] The process for judicial appointments to federal courts was only revised in 2008 to ensure both greater transparency and merit-based appointments.^[58] There are no longer any current judicial appointment processes for any of the federal courts.^[59]

The 1993 Senate Select Committee also recommended that the national Australasian Institute of Judicial Administration (“the AIJA”) be adequately funded to develop gender-awareness programs in consultation with the courts.^[60] The AIJA had previously accepted federal government grants to develop a national program on “gender equality and the law”.^[61] In September 1993, the AIJA sent a number of Australian judges to Vancouver, Canada to attend a faculty training workshop on gender equality. These delegates then advised the AIJA’s Gender Equality Committee on strategies to develop suitable programs in Australia.^[62] The Judicial Commission of NSW was also represented at the Canadian workshop.^[63] Throughout the 1990s, various courts developed their own courses on gender awareness training for judges and staff.^[64]

The ALRC acknowledged in its Equality before the law reference the “considerable activity in the area of gender awareness programs for the judiciary”^[65] since 1993. For example, the Federal Court of Australia appointed a standing committee to advise the Chief Justice and other judges about gender issues within the court’s administration in the provision of its services.^[66] The Western Australian Supreme Court established a gender bias task force to develop a judicial education program.^[67] The ALRC made no recommendations in its 1994 report about gender awareness in judicial education, but observed that there was a need “to ensure that the programs are co-ordinated and adequately funded”.^[68]

When the Judicial Commission was established in 1987,^[69] there were 222 judicial officers in NSW and only 4.5% of judicial officers were women. In 2013, there were 323 permanent judicial officers in NSW and 34.8% of these were women.^[70] This is equivalent to national figures where 8.8% of the judiciary in 1995 were women, rising to 33.5% in 2013.^[71] As at 30 June 2021, of the 300 permanent judicial officers in NSW, 124 are female (41%). The Land and Environment Court has the greatest gender parity with 45% of female judicial officers; the Local Court has 43% female magistrates. The Supreme Court has 24% female judges. Although women today are graduating from law school in higher numbers than men and more women are admitted as solicitors than men,^[72] women remain underrepresented in the judiciary and among the ranks of partners in law firms and senior counsel.^[73]

The Commission’s statutory charter is to assist the courts to achieve consistency in sentencing; to organise and supervise an appropriate scheme for the continuing education and training of judicial officers; to investigate complaints concerning the ability or behaviour of a judicial officer; and to give advice to the Minister as the Commission thinks appropriate.^[74]

An early objection to the establishment of the Commission and the provision of a judicial education program was that it would interfere with judicial independence and represent an attack on the separation of powers in NSW.^[75] These objections were answered when the Judicial Officers Act 1986 was amended to establish the Commission as a body independent of the executive arm of government with judicial participation in the education program being voluntary and judge-led.^[76] This aligned with the educational philosophy of the Canadian Western Judicial Education Centre which has peer-leadership and judicial independence as key elements. As Professor Mahoney observed, an internal voluntary reform movement will always be more effective than an imposed one.^[77]

The Commission’s judicial education policy is not to interfere with judicial discretion but to develop judicial skills, attitudes and knowledge, enhance professional expertise and promote the pursuit of juristic excellence.^[78] The overarching purpose of judicial education is to improve the quality of justice so as to maintain public confidence in the impartial and independent administration of justice.^[79]

The Commission aims to offer up to five judicial education days a year for each judicial officer in NSW in keeping with the national standard developed by the National Judicial College of Australia (NJCA).^[80] The Commission’s judicial education program is multi-faceted, comprising conferences, seminars, field trips, interactive educational sessions, an Aboriginal cultural awareness program, a 360 degree feedback program for judicial officers, a voluntary mutual observation program for magistrates, publications, computer training, and online and printed resources. The program is based on sound adult education design principles with a focus on experiential and interactive learning, that is, learning based on experience and enhancing judicial skills. The Commission has been influenced by the work of David Kolb and the National Judicial Institute of Canada.^[81]

Since its inception, the content of the program has been developed by the education committees of each court in NSW in accordance with the objective of judge-led judicial education. The committees regularly meet to discuss the proposed judicial education programs for their particular courts. The Judicial Commission’s professional staff attend all education committee meetings and provide educational input and support. A Standing Advisory Committee on Judicial Education (SAC) was also established with a representative from each of the court’s education committees. The SAC provides general guidance and informs each jurisdiction of the activities in the various courts. Information gathered from complaints lodged to the Commission about judicial officers is also used to develop specific education sessions on subjects that include domestic violence, sexual assault issues and cultural awareness.

From 1993, the Commission offered specific structured sessions relating to gender equality, Aborigines and the law, and ethnicity in the courtroom. The Commission gave evidence to the 1993 Senate Standing Committee on Legal and Constitutional Affairs which specifically noted the provision of education to magistrates about domestic violence.^[82] The Legal Aid Commission of NSW gave evidence to this inquiry that, as a result of this education, there was “an improvement in the attitudes of magistrates in providing access to Apprehended Violence Orders, and action when an order has been breached”.^[83] In 1994, the Judicial Commission gave evidence to the ALRC inquiry that it was providing magistrates with education on domestic violence and on women and the law as part of its education program.^[84]

Throughout the last three decades, the Commission has continued to offer judicial training on gender equality with the objective of promoting equality before the law in a pluralistic society.^[85] Up until 2003, discrete sessions on gender issues, including domestic violence and cultural issues, were offered at the courts’ annual conferences, seminars, orientation programs for magistrates and workshops.^[86] Since the 2002–2003 reporting year, the approach has been to integrate gender awareness with a range of issues relating to equality and diversity including Aboriginality, ethnicity and disability.^[87] The Commission has developed materials, workshops, seminars and sessions in court conferences to provide information and promote awareness of problems and solutions; to develop practical judicial skills (for example, in courtroom communication, assessment of credit, decision-making and sentencing); and to promote analysis and critical self-reflection of disposition, attitudes and values. Faculty and presenters are drawn from the judiciary, academics, legal practitioners, law reformers, criminologists and professional educators. The Commission evaluates every education session offered to judicial officers to ensure that each session meets its learning objectives, and to review and continually improve the judicial education program. The low number of complaints made to the Commission each year about judicial ability or behaviour demonstrably attests to the value of the education program with its objective to enhance judicial capacity and performance and improve the quality of justice.^[88]

Two decades after feminist legal scholarship began to question the gender bias inherent in the common law, education about gender equality was introduced to the Australian judicial training agenda in 1993. Taking its cue from developments in North America, the Judicial Commission of NSW committed to raising judicial awareness about conscious and unconscious gender bias through its voluntary judicial education program, along with several Australian courts and the AIJA. In 2021, against the backdrop of the #MeToo movement, another North American development which came to prominence in 2017, the Commission has joined other Australian judicial education providers on a national working group on sexual harassment for judicial officers. The Commission’s focus has been on the practice and procedure of judging — the judicial method — to assist the judicial officers of NSW to administer the law without fear or favour, affection or ill will.