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

As demonstrated by the book of papers published by Ulrike Schultz and Gisela Shaw, Gender and judging,^[3] there is a wealth of research being conducted on gender awareness in the judiciary in many countries in Asia, South America, Africa, Europe, North America and Australasia. This conference reflects part of that global process, specifically work undertaken in Japan by Professor Kayo Minamino and her colleagues.^[4]

An important preliminary lesson from this research is that, broadly speaking, lack of gender awareness is a problem across different cultures and across different legal systems, but is revealed in different forms; it follows that solutions which will work in one country may fail or be inappropriate in another. That is exactly as one should expect. The lesson applies to me too; I can describe my perceptions of our Anglo/Australian experience, but I cannot (and should not) extrapolate to Japanese legal culture.

There is a fundamental reason why all countries which operate under the political principle of the rule of law share the problem. The reason is that laws must be applied, in the words of our judicial oath, without fear or favour, affection or ill will. Partiality, that is, preferring one party over another for reasons not permitted by law, is prohibited. Judges must be impartial at all times and in all cases: at least, that is the ideal. Sometimes we fall short; and in particular we may fall short because we carry unexamined “baggage”.^[5] Part of the baggage, and I emphasise part, especially for male judges, is an omission, a lack of appreciation of the experiences of, and values which are commonly held by, women. There are other points of blindness, but this one is particularly important because it potentially affects half the population.

There are a number of assumptions underlying the concept of judicial education with respect to gender awareness. Any proposal directed to this topic must first identify and address those assumptions. One assumption is that differences in gender can affect the way judges administer justice and decide cases. No doubt that is true, but how it works, and why this issue deserves special attention, require consideration.

Having said that culture and the legal system are significant variables in understanding and addressing this issue, let me say a little about our Australian context.

Australian courts (like those in the English tradition elsewhere) are largely constituted by judicial officers who are not trained as such, but are lawyers with many years experience in practice, whether private, public or self-employed. Whilst, in the past, magistrates were part of the public service and obtained experience as clerks of the relevant courts, that is no longer the case. Like judges in higher courts, they are chosen from the ranks of practising lawyers, operate independently of government and are appointed to a statutory retirement age (usually 70).^[6]

Once appointed, a judge can be removed only by the Parliament, and not by the executive government alone, and then only for misbehaviour or incapacity.^[7] Generally, judges are not promoted and expect no preferment. Once appointed, most will remain in that position until retirement. They will acquire seniority and respect based on performance, but they expect that from peers and not from the government.

Our laws may best be described as a mixture of judge-made law and statutes enacted by Parliament. There is room for interpretation and for discretionary judgment in their application. Trial judges (as everywhere) must apply their skills and experience in assessing the evidence, particularly in relation to witnesses giving oral accounts of what they have seen or done, or what has happened to them.

Finally, a special feature of our system of administering justice, probably known to you from American television, should be noted. Trials of serious criminal charges are conducted before a judge and jury of 12 drawn from the community. The jury are solely responsible for fact-finding — applying legal principles explained to them by the presiding judge, but assessing the witnesses based on their diverse experiences. Juries contain roughly equal proportions of men and women. The jury has an important constitutional function in the administration of justice. They are not specifically instructed in how to avoid prejudice and stereotyping in relation to gender.

Gender supplies an important consideration for judges in four respects. First, there are gender-based values which infuse substantive legal principles. Much academic writing has focused on this aspect.^[8] It is one of which judicial officers should be conscious, but which they have little opportunity to change. Second, there are areas for evaluative judgment where consciousness of gender-based values may be significant. Assessment of damages in tort and sentencing for crimes may provide examples. Third, gender may be relevant to our expectations of how people behave in particular circumstances. In this sense, our understanding of typical responses (what people in fact do, rather than how they should be treated) will affect our assessment of credibility. Fourth, the last issue arises with respect to how juries assess credibility and thus the directions to be given by the judge. The jury should be warned about problems of which they may not be aware (for example, unreliability of identification evidence), but to warn of inappropriate gender stereotyping may be to intrude on the core function of the jury. It is the second and third aspects which engage the core issue for present purposes.

There is no doubt that in many respects men and women share the same experiences and skills. However, there are areas in which experience and (some would say) skills and methods of reasoning differ. Based on personal experience, culture and upbringing, people acquire different values and assess the world differently. On the other hand, as judges, there is much which is likely to unite us in our common training as lawyers.^[9]

The fact that judges bring their own values and experience of the world to the function of judging (possibly in varying degrees) has been the subject of concern over the decades and, indeed, through much of the 20th century. The early modern expressions were found in the area of industrial law.^[10] The assumption was that by background and upbringing, judges were more likely to be understanding of the values and goals of employers than those of labourers and unionists. A similar concern arose in relation to race. The civil rights movement in the United States, for example, had its own analysis of the composition and operation of courts.

Recognition of gender as a point of difference appears, broadly, to have arisen later than class and ethnicity, and has been followed by concerns expressed by various social minorities, including gay men and lesbians.^[11]

To place gender concerns in a list is not to diminish their validity, but to seek to understand the role which gender awareness may properly play in educational programs. Much advocacy for oppressed groups relies on an assumption that a judge’s membership of a particular group, at least where that group is not part of the dominant class in society, is a condition of full understanding and hence of providing justice. The move for recognition of the special needs of oppressed or excluded groups thus tends to be expressed not as a demand for judicial education, but for representation.

“Representation” may be appropriate in a legislature, but the executive and the judiciary should reflect, rather than represent, the diversity of the society they serve. Diversity is an important value in the administration of justice. Whilst the rule of law may depend on the availability of mechanisms for enforcement (such as an effective and uncorrupted police force, and sheriff’s officers to enforce civil judgments), it will also depend upon a high measure of acceptance, across all social groupings, of the functioning of courts. Thus, in a civil society based upon notions of individual equality, the apparent exclusion of a large and highly visible group from the judiciary will tend to diminish respect for the law and undermine the rule of law as a political institution. The presence of women on courts in significant numbers is a necessary element of a healthy democracy.

There is a wealth of anecdotal evidence that women appearing as advocates feel uncomfortable and perceive themselves to be outsiders in courtrooms routinely presided over by male judges. To describe the feeling as a “perception” is not to imply that it is unjustified. The feelings of exclusion may extend to female judges, at least when few in number.^[12]

In Australia, approximately 33% of judicial officers are women^[13] and that percentage applies across almost all jurisdictions (State and federal) and at all levels in the judicial hierarchy, although it tends to be lower in the higher courts.^[14] (That achievement has occurred entirely within my adult life: when I graduated from university, there was only one female judge in the superior courts in Australia.^[15])

However, the importance of maintaining a reasonable proportion of women in the judiciary is not limited to democratic inclusivity. Although not the primary justification for maintaining a diverse judiciary, women may have an educative function for the judiciary as a whole. That effect will operate differently in different jurisdictions. Thus, our Court of Appeal, excluding the Chief Justice whose sitting time is limited, and excluding the Chief Judges of the trial divisions who also rarely sit on appeals, has a President (who is a woman)^[16] and nine other full-time Judges of Appeal, of whom two are female.^[17] We sit in Benches of three, so that the chances of a male judge sitting with a female colleague is high. To the extent that a woman’s view of a matter were to be significantly different from that of her male colleagues, she is able to express that view, not merely in a judgment, but in discussions that occur both in court and out of court. Of course, that involvement is not available in trial courts, where judges sit alone. The two trial divisions of our Supreme Court comprise approximately 36 full-time judges, of whom six are women.^[18] One division hears serious crime and civil negligence cases, while the other deals with much of the commercial work of the court (and has a female Chief Judge). Although the numbers are perhaps lower than one might wish, there is still a group of female judges whose views will be expressed to their colleagues from time to time, including in the course of informal discussions about their respective cases and during regular lunches.

I derive two propositions from the experience of our court. The first is that the need for judicial education regarding gender awareness is likely to be reduced in circumstances where women constitute a significant proportion of a court. Secondly, and perhaps ironically, judicial education with respect to gender awareness is likely to be taken more seriously, and thus likely to be more effective, where there is a significant number of women on the court.

However, there appears to be a “critical mass”, below which women judges are likely to feel themselves to be outsiders and uncomfortable.^[19] (That is not to say that achievement of such an outcome is a sufficient response to the need for diversity; nor that it is possible to define that level — either in numerical terms, or across courts.)

The literature assumes that gender awareness, as an element in judicial education, is intended to address the needs of male judges for insights as to female values and experiences. As a broad proposition, and in the present social context, that focus should be accepted. The introduction of sex discrimination laws in Australia was accompanied by a debate as to whether they should apply both to discrimination against women and discrimination against men. The principle of formal equality suggested that they should apply to both; the goal of substantive equality suggested that men do not need protective laws of that kind, because they generally have enjoyed a position of superiority, rather than inferiority, in the public life of the country.

Sexual assault is often identified as a situation where many men and many women could (and undoubtedly do) have different perspectives. But the courtroom brings its own set of values. Assuming a male accused and a female complainant (the most usual case), it would undermine the rule of law if the outcome were thought to depend on whether the judge was male or female. And race can add another dimension.^[20] Diversity may, by raising such questions, highlight the complacency of assumed impartiality in another age. The only appropriate response is to ensure that it does not matter who the judge is. The principle of impartiality does not assume a mind free of personal opinions and values, but rather an ability to recognise, question and consciously allow for the attitudes and sympathies which are held, when deciding a particular case.^[21] To that end, judges must be able to discuss, identify and explore assumptions, attitudes and values. To provide a forum for that to happen is an important function of judicial education.

The way in which judges behave in court can be critical to the perception of equal treatment according to law. Any person involved in court proceedings who is treated dismissively is likely to believe they have not been accorded “a fair go”. Comments by male judges revealing misogynist or stereotyping views have no place in any courtroom. Although it is not part of this topic, there should be scope for complaints to an independent panel which can review judicial conduct.^[22]

One would like to think that such concerns are relics of bygone days, but they clearly are not, or at least not everywhere. On the other hand, most male judges on our court have grown up in an era when it was not unusual to appear with or against female advocates, to be briefed by female solicitors and to appear (at least on occasion) before female judges. Further, many of us live with professionals. In the last decade the number of partners of judges on our court who have held (and often continue to hold) positions in business, government or as self-employed professionals, has increased dramatically.

Expectations and understanding will be affected by such changes in demography. Several factors work together; however, the most important factor in terms of avoiding social ostracism is probably the sheer weight of numbers. Once women exceed a figure around 20–25% of the court’s membership, appearing before a female judge is likely to be seen as “normal”. Through various processes, the atmosphere in the courtroom is likely to change from the earlier days when a male ethos dominated.

Attitudes can be held subliminally and may be retained despite such changes. These may require conscious exposure, but when exposed may readily be addressed.

The processes of decision-making and judgment writing may be distinguished from issues relating to conduct in court and the atmosphere of the courtroom. Whether women judges decide cases and write judgments differently from men is controversial,^[23] as is the proposition that there should be education to teach men these skills, implying that they are a preferred form of judging. Of course, if gender is (or should be) reflected in decision-making, it must be discussed in judicial education.

In the English speaking world, the issue was clearly articulated in a paper by Justice Bertha Wilson, the first woman appointed to the Supreme Court of Canada (in 1982). Prior to attaining that high office, she had been a judge on the Ontario Court of Appeal since 1975. In 1990, with some 15 years’ experience on superior courts, she wrote a paper entitled “Will women judges really make a difference?”.^[24]

Over the 31 years since Wilson J published this paper, the intensity of interest in the question she identified has grown exponentially, at least if measured by academic research and publications.^[25] The answers to this question may be important in determining the scope and content of judicial education in the current era.

At one level, the question may readily be answered, “yes”. A critical mass of women judges will make a difference in the ways already identified. By reflecting one of the most obvious elements of diversity in every society, their presence will help to overcome the sense of disenfranchisement which inevitably results from the absence of women from any of the three arms of government. By the same token, their presence will lend credibility to the administration of justice. There will be consequential effects, including the reduction (and hopefully the removal) of feelings of alienation felt by women working within the legal profession and the courts. The importance of these consequences should not be underestimated; they are likely to build on themselves.

There is another sense in which the inclusion of women in the judiciary may well affect the outcomes in some cases. For the reasons already explained, all of us bring certain values to the administration of justice, which will be based to a significant extent on our life experiences. Arguably, maturity and a range of life experience should be criteria for judicial selection. Further, the desirability of a range of experience across the membership of a court is also a relevant consideration. (Some differences in experience may diminish as women become familiar in the corridors of power, whether political, governmental or commercial. Biological roles will not change, but aspects of oppression may diminish.)

Justice Wilson’s question, however, was primarily directed at a different level. It was intended to focus on whether cases will be decided differently when the judiciary contains a significant female membership. At that level, the question itself is fraught, for a number of reasons. First, it must not be allowed to influence the identified need for diversity in the composition of the courts. By analogy, democratic government requires that women have the vote. Although psephologists treat gender as an important factor in studying voting patterns, women should have the vote whether that would affect the outcome of elections or have no influence at all on the outcome of any election or all elections. By parity of reasoning, a conclusion that women judges will not affect the way in which cases are decided does not mean that increasing the numbers of women in the judiciary is not an important goal, or even that it is a goal having a lower priority than it otherwise might.

The question is reflected in feminist literature which seeks to locate specifically feminist sets of values which, to form a social goal, must be both different from and superior to the values presently in place. Justice Wilson drew on the work of Professor Gilligan in search of such values.^[26] Justice Wilson noted:^[27]

Other work has focused on women’s superior skills in listening, empathising and communicating.^[28]

There are risks of unintended consequences attending this line of argument. Supposing empirical research provided support for the psychological theory, the response would surely be to ask where people with these specialist capabilities are best deployed. The answer is likely to be the trial courts and particularly the magistrates’ courts and tribunals with the greatest contact with members of the public. Indeed, there might be a tendency to have women focus on alternative dispute resolution, thus creating a new pressure for women to work outside the mainstream courts. Once established, such a mindset would operate adversely to the interests of the many women in the profession who specialise in constitutional law, commercial law, intellectual property, taxation and land law.^[29]

Further, the argument that experience affects outcomes justifies inquiry into the judge’s experiences, with the purpose of seeking recusal for apprehended bias if the information gleaned warrants such an application. Public confidence in the judiciary is likely to be diminished, rather than enhanced, by such inquiries and applications. Our system depends on judges identifying potential conflicts and either not sitting, or advising the parties of the issue and seeing if objection is taken. However, recusal is usual only in cases of specific connection, such as knowing a witness or a party, or involvement in related litigation when credibility of a person was assessed, or having acted for a party before appointment to the Bench.

Otherwise, judges are expected to put personal views on matters other than relevant legal principles to one side, so as to reach a decision on the evidence and according to law. Judicial education is devoted to the realisation of the ideal that the identity of the judge should not affect the outcome. As between the parties, he or she should strive for neutrality, although the outcome will not be neutral.

If the established legal principles do not fairly reflect values of gender equality, the proper way to promote those values is to identify them and seek to adapt the system by legislation. Indeed that has happened in one of the areas identified by Wilson J, namely the “complex system of exclusionary evidential rules”^[30] which she equated with an adversarial system reflecting male values. Whether or not that characterisation is correct, there have been major reforms of the rules of evidence since 1990 (at least in Australia) which appear to have had nothing to do with the appointment of more women to the Bench, as opposed to broader political pressure on legislatures. Some of the exclusionary rules are designed to protect criminal defendants from juries convicting on the basis of prejudice and stereotyping, rather than by focusing (as they should) strictly on evidence directed to the charge laid by the prosecution. There have been changes in recent years in Australia with respect to aspects of criminal procedure designed to reduce the need for complainants in sexual assault cases to relive the experience in a very public forum and before an alleged attacker. They have not been uniformly welcomed, but they have resulted from a public debate and legislative response.

This brief review of concerns raised about the role of women in the judiciary (or more accurately their absence) reveals two matters of importance for judicial education, one involving removal of a negative element, the other a positive benefit. First, while attitudes are changing, there are still too many examples in our country of male judges with unconscious stereotypical attitudes about the role of women in society. Those attitudes, it may be noted, do not necessarily relate to the role of women as judges or lawyers, or as professionals more generally. Thus, a judge who is genuinely and consistently respectful of the views of female colleagues may yet make inappropriate assumptions about women involved in sexual assault cases or women seeking a greater share of a testator’s estate. It is desirable for all of us to examine our unconscious thought patterns. By providing structured assistance in this regard, judicial education may be seen as an attempt to counter negative influences.

The second matter is that women’s different life experiences and consequential values, if incorporated into judicial decision-making, may complement a judge’s frame of reference. Education directed to that end may be seen as promoting a positive benefit, as well as removing a taint on impartiality.^[31]

This discussion appears to raise a paradox: addressing partiality in the form of unconscious prejudices requires some form of judicial education — a process which has the capacity to intrude on judicial independence. This apparent paradox can be resolved. To explain how, it is necessary to look at some history and context.

For a long period, there was resistance to “judicial education” as a legitimate activity. That attitude was based on a concern that any kind of “education” diminished the independence of the judiciary. That was an unsophisticated view from a simpler age. It is now necessary to acknowledge the growing complexity of law and society, which calls for continuing professional education.

Nevertheless, there are limits as to what is acceptable. Discussing how kinds of cases should be addressed is acceptable; direction as to how particular cases should be decided is not. Identifying the skill sets required for judging is acceptable; criticism of individual judges (except of course through appellate judgments) is likely to raise resistance. Anything which carries the hint of political direction will be greeted with deep suspicion.

Yet feminism is a set of political values. Most judges will understand it to be a reflection of the principle of equality and thus in conformity with the rule of law. But as an ideology it has no direct application in legal reasoning, nor is it a requirement for judicial education.^[32] A pragmatic approach to gender awareness is to locate it firmly in the broader concept of unconscious partiality. It is then an acceptable (and essential) element of judicial education.

It is somewhat artificial to look for a defining commencement date for moves to introduce gender awareness into judicial education in Australia. That is for two reasons. The first is that whatever date one chooses, it was preceded by laws relating to sex discrimination generally and many other public activities devoted to promoting equality for women.

The literature suggests that the topic of gender awareness was stimulated in Australia by the writings and speeches of various Canadian lawyers, including Professor Kathleen Mahoney, a distinguished Canadian academic.

In 1990 Malcolm CJ, from WA, attended an international conference in Edinburgh entitled, “Equality and the administration of justice: gender, race and class”.^[33] Stimulated by the presentations at that conference, including from Professor Mahoney, he organised a seminar on the topic, “Gender bias in the administration of justice” held at the Supreme Court of Western Australia on 14 August 1992. He also established a committee to consider the question of gender bias, which reported in 1994.^[34]

In the same period, the Senate in the Commonwealth Parliament asked the Standing Committee on Legal and Constitutional Affairs, to inquire into “gender bias” and the judiciary, which resulted in a report dated May 1994.^[35]

Much has changed over the last 27 years. Now, three specific propositions should be borne in mind. One is that judges value high quality judicial education but tend to be impatient with, and dismissive of, that which does not live up to their expectations. That proposition flows from two somewhat conflicting factors. On the one hand, when appointed, our judges tend to be highly experienced lawyers, senior in their profession, both in terms of professional status and age. On the other hand, most of us will readily acknowledge that the function of a judge is not something that we have experience of, and will concede the need for assistance.

A second and related point is that many judges will come from a specialist background of legal practice, as to which they are truly expert, but will be required as judges to function across a far broader range of cases. The need to become familiar with new areas of law and procedure and write authoritative judgments about them is a demanding exercise.

The third point is that many lawyers who become judges will have skills drawn from professional and personal experience. They will probably have spent much time in their professional careers assessing the truthfulness and reliability of witnesses (and clients) and forming judgments about how others will view them as witnesses in court. However, the more senior one is professionally, the more likely one is to resist the suggestion that one has unconscious prejudices, unarticulated and unexamined values and limited understanding of how one reaches one’s own decisions and makes one’s own judgments. Yet this is the area into which judicial education must delve if there is to be any serious attempt to improve levels of gender awareness.

In NSW, the most focused attempts to raise gender sensitivity are to be found in the Equality before the Law Bench Book, produced and regularly updated by the Judicial Commission of NSW with the assistance of a panel of judicial officers.^[36]

The Bench Book, which is provided to all NSW judicial officers, identifies sources of inequality, stating:^[37]

Troublingly, the Bench Book notes:^[38]

The Bench Book then lists and addresses a number of situations where gender bias could occur, or be perceived to occur:

Many of the examples are culturally quite specific; others are almost simplistic. For example, we advise judges not to address women by their given names if they address men using a title and a family name.

Further, in major criminal trials, a judge presides, but fact-finding is undertaken by a 12-person jury. Other matters dealt with in the Bench Book concern directions to be given to jurors in considering the evidence. While the use of lay jurors in criminal trials is derived from long-established British tradition and provides many in the community with a direct role in administering criminal justice, jurors will bring to their task both everyday experience and everyday prejudices. Possible prejudices may need to be addressed by directions from the judge.

Beyond the circulation to all judicial officers of the Equality before the Law Bench Book, the topic of gender awareness is dealt with incidentally in seminars organised by the Judicial Commission for the courts and at annual court conferences.^[40] In our court, we are focusing on understanding the psychology of decision-making and how unconscious biases can (and in some circumstances undoubtedly will) affect the way we make decisions and thus administer justice.

Most judges have a limited role in leading social change; our primary function is to administer the law, rather than make it. However, administering the law frequently involves evaluation and choices, and judicial education can at least help to prevent judges from preserving or reinforcing factors which diminish the equal treatment of women in society. There is an increasing insistence that partiality is more than conscious bias. A truly impartial judge must be able to identify and counter unconscious prejudices, stereotyping and predilections. However, the line between sound judgment and prejudice is porous and contestable. It is an important function of judicial education to raise awareness of such issues, of which gender difference is an important part.

The dangers of unconscious prejudice for true impartiality were recognised long before the concept of “judicial education” became acceptable in common law countries. The appropriate solution was then seen to be self-examination, itself a desirable (if not an essential) skill for a good judge.^[41] However, the place of continuing legal education within the legal profession is now well established (and is a requirement for annual recertification). Thus, our judges, who were practitioners prior to appointment, are amenable to the idea of continuing legal education once appointed to a court.

The important protection against any intrusion on judicial independence is to ensure that control of judicial education lies with the judges themselves. Thus, our court has a committee of judges which organises educational programs, with the help of a Judicial Commission, which is itself governed by a Board comprising the heads of all jurisdictions.

The Australian Council of Chief Justices has approved a goal that judges participate in 5 days of continuing education a year.^[42] Attendance is entirely voluntary, but, at least in NSW, it is well-attended and appreciated.

The issues in civil law jurisdictions with a career-judiciary are beyond the scope of this paper and beyond my competence to discuss. The principle of impartiality will not seem foreign to you, but questions of independence will operate differently.