On this International Women’s Day, we notice the return of calls for the elimination of unconscious bias in the legal profession. This got a lot of airplay back in the 1990s, especially regarding alleged gender bias in the Judiciary. (Apparently, there were a number of ‘beer man’s judges’ about).
Recently, the President of the Law Council of Australia, Fiona McLeod SC, issued a press release announcing “a national first, a customised unconscious bias training program aimed specifically at the legal profession…Human beings are hardwired to notice personal characteristics and to prefer those with attributes or experiences similar to their own, without conscious awareness…Unconscious bias is an insidious and increasingly-recognised factor undermining organisational culture, leading to loss of productivity and revenue.”
A golden rule of the Law is that nobody shall be a judge in their own cause. In other words, an adjudicator must be and be seen to be free from bias in the determination of disputes.
Does a court of appeal or review inquire into the mind of a decision-maker or investigate the possible relationship between the presence of bias and the result of a case?
No for good reasons. It is frankly unseemly to inquire into a decision-maker’s motives, unsatisfactory to seek an explanation beyond adequate reasons for the decision, and unrealistic to require an appellant to show what will commonly be not demonstrable. So the Law says it is enough to prove that an innocent bystander or onlooker, not of a capricious or unduly suspicious mind, would hold that a reasonable appearance of bias tainted the proceedings. “Justice must not only be done but be seen to be done” and hence one can appreciate that the reality is not more and sometimes less important than apprehension.
The categories of bias are not closed. They include pecuniary bias (the Judge has some financial interest or stake in the result), aversion or preference (for one side, their counsel or witnesses, perhaps stemming from some close association or familial relationship), ex parte communications (unequal access to the decision-maker), ‘entering the arena’ (Judge assumes the role of an advocate or oversteps the mark as a conciliator), an intimate involvement in the original accusation or laying of a charge, and pre-determination (the enervating display of a closed mind).
But what of personal views strongly held (though unconsciously!) by a Judge as to the veracity, robustness, criminal tendencies or inherent worth of certain racial types, gender identities or socio-economic classes? It is rare that these views will ever surface explicitly, such as in a reported 1938 case examining a decision by a Magistrate rash enough to declare that ‘all Italians and Portuguese were liars.’*
Most of us would accept that we harbour prejudices arising from our upbringing, cultural experiences, educational backgrounds and a host of other stimuli. Serious questions have been raised, and as we have noted, are being raised again, concerning the impact of these prejudices upon the practise of the law and judicial decision-making. An impact is invariably assumed. Moreover, a lawyer’s training tends to be overlooked. That is, the skill to ascertain facts received according to evidentiary rules and apply the law to those facts to get a result. To determine issues raised by the parties and reach the truth. To put it another way, a Judge may hate the guts of a litigant with a strong case, but that litigant will probably win. Any misunderstanding of the confined space in which a judge’s skills and work are applied can therefore lead to cockeyed suggestions such as a judiciary ‘representative’ of all sections of society, educational awareness programs, and arbitrary quotas.
The logical outcome of these types of dumb ideas? A debasement and corruption of society’s understanding of the function of the law and not only scrutiny of previous judgments, but individual judge’s personal backgrounds, views and circumstances will become a matter of public record. Perhaps we will be treated to the circus of confirmation hearings by the legislature, or elections, with candidates forced to table details of investments, directorships, memberships of clubs, religious practices and views, political affiliations, sexual preferences and so on.
An assumption, which seems to be abroad, of endogenous, systemic, ‘unconscious’ bias will loom like Banquo’s ghost at any case involving an issue of race, gender, or class; wherever, indeed, the parties are unequal or simply different from each other.
But how may a sexless, classless, colourless automaton decide a case uninformed by “that exposition of affairs, fortunes and experiences within a community and of the extent of their interdependence, of the persuasive force of evidence that conforms to the reality known to ordinary men and women, and of the true nature and the bounds of relevance…”?**[*Re “Catalina” (1938) 61 LILR 360.] [**W. A. N. Wells, Evidence and Advocacy (1988), p.88.]