Bias and judicial education
Jessica Kerr
This is a post in a special series that AUSPUBLAW is featuring on the Australian Law Reform Commission’s report on Judicial Impartiality. This special series will be hosted across two weeks on AUSPUBLAW, and the full series can be accessed here.
19.08.2022
‘Judges need better education’. Seeing those words headlining Gabrielle Appleby’s explainer of the Australian Law Reform Commission’s (ALRC) ground-breaking Report was a proud moment for those of us championing judicial education as a ‘vitally important form of regulation’. While education is a recurring theme in what the ALRC calls the ‘institutional architecture’ of impartial judging, two related recommendations in the category of ‘institutional supports and safeguards’ are specifically directed to investment in this area:
Recommendation 9 Each Commonwealth court, through its head of jurisdiction, should develop a structured and transparent approach to the training and ongoing professional development of judges. Each court should report annually in a standardised manner on the provision of, and attendance at, training and professional development.
Recommendation 10 In implementing Recommendation 9, each Commonwealth court should develop a structured and ongoing program of Aboriginal and Torres Strait Islander cross-cultural education for members of the federal judiciary. The development and delivery of the program should be led by Aboriginal and Torres Strait Islander people and organisations.
This post reflects briefly on the ongoing sensitivity around educating common law judges, and the quietly radical nature of some of the discussion underpinning these modestly framed recommendations. It also highlights the broad spectrum of pressure points for impartiality to which, in the ALRC’s view, judicial education can and should respond. It notes the variety of potential purposes served by education initiatives, from foundational to aspirational to remedial; the evolving range of core judicial (as distinct from legal) skills; and the particular complexities of educational design for a more diverse judicial cohort.
The myth of ready-made judges
The ALRC’s recommendation for ‘structured and transparent’ judicial education is, like the broader suite of institutional recommendations, framed as responding to the inquiry’s overarching imperative of maintaining public confidence in the administration of justice for all Australians. It is remarkable, in this context, to reflect on how recently it could be resisted as a threat to both judicial independence and public perceptions of impartiality.
As the ALRC noted in a background paper, at the core of what I call the ‘logic of recognition’ is the assumption that judges are found, not made. To quote a senior New Zealand judge, it was thought that ‘you just came straight out of the egg, and you were perfectly able to do all this stuff’. Safeguarding the independence, and status, of newly hatched judges was understood to require leaving them to their own professional devices, drawing on whatever pre-existing legal competence, and other baggage, they brought with them. For outsiders, or even other judges, to presume to teach a judge about judging could too easily be perceived, or exposed, as an attempt to sway that judge’s decisions. Raising concerns about gaps or inconsistencies in judicial preparedness, let alone the prospect of unconscious judicial bias, took commentators into deep taboo territory – not least because it opened the door to possible deficits in our inherited system of “merit” appointments from the legal elite. But the polite fiction that all appointees ‘are presumed to possess the necessary skills and experience for judicial functions’ has become progressively less defensible. Judges themselves have long called for greater educational support. The risk inherent in systems which rely on unregulated private career trajectories to generate judicial merit has also become less palatable from a legitimacy perspective. As judicial education proponents like Rosemary Cairns-Way point out,
what is most desirable is a judge with as complete a store of knowledge as possible – a store of knowledge which is more than just the accidental result of the judge’s particular life experiences and social world.
Learning how to judge
Against this background, a key general takeaway is the ALRC’s openness about discussing the systematic acquisition of judicial skills. Supporting judicial impartiality through education is not just a matter of well-designed CPD, within a euphemistic “enrichment” paradigm. It requires a transparent and conceptually sound structure for foundational training. This distinction, which is affirmed internationally in instruments like the Declaration of Judicial Training Principles, was more sharply drawn in the ALRC consultation proposals, which dealt separately with initial and ongoing education. But it is preserved through Recommendation 9’s references to ‘training and professional development’.
A recent overview report for the AIJA to which I contributed notes the persistence of conceptual as well as practical barriers to the project of educating judges, including those rooted in somewhat defensive notions of judicial independence. The vexed question of whether educational initiatives can or should be made compulsory, which the ALRC tactfully declines to answer, epitomises the stickiness of these notions. The continuing tendency to restrict public discourse to the deferential professional development paradigm is borne out by publications like the AIJA’s Guide to Judicial Conduct, which speaks only of opportunities to ‘maintain and improve’ existing skills.
The Report’s endorsement of my argument that ‘there should be a more open acceptance of public responsibility for supporting individuals to acquire the competence required for the judicial role’ is, in these circumstances, quietly radical. It invites close, and potentially uncomfortable, engagement with the increasing disconnect between legal and judicial professional competence, and with the multi-faceted educational implications of accelerating diversity. As Chief Justice Gleeson warned decades ago, governments have been able to rely on judicial homogeneity and self-replication to avoid investing adequately in educational infrastructure. Such investment is now critically important to providing the more structured, but also more nuanced, ‘backdrop of partiality’ for a more diverse judiciary.
Competence and impartiality
It is, then, just a little disappointing – if unsurprising – that the Report does not identify competence as a free-standing regulatory value in the pursuit of public confidence. In addition to transparency and diversity, which this Report understandably centres, the ALRC lists three other core values as ‘particularly closely related to impartiality and particularly important to public and litigant confidence’: integrity, equality and fairness. There is a credible argument for adding competence to the list, given its prominence in instruments like the Bangalore Principles of Judicial Conduct and the Latimer House Principles. Competence is, however, yet to feature independently in Australasian scholarship on core judicial values. This is, arguably, further proof of the taboo on questioning judicial preparedness, at even the system level.
The initial positioning of education in the Report’s summary diagram of structures and practices contributing to impartiality is also more orthodox than the complexity and creativity of the subsequent discussion suggests. Education is presented in this diagram as a measure to ‘promote & enhance impartiality’, but not as one which also serves (like appointments) to ‘mitigate threats’ or (like complaints) to provide ‘accountability for minimum standards’. Consigning a measure to the ‘promote & enhance’ category might seem to distance it from the ‘irreducible minima’ of legitimacy, making it less of a regulatory imperative. However, as the accompanying text clarifies, it is this category of measures which ‘provide the underlying conditions which make impartiality possible’. And the ALRC’s substantive discussion affirms the myriad of ways in which educating judges can contribute to these conditions. Education about impartiality in a black-letter sense – keeping judges up to date with the law and process which the ALRC has just reviewed – is, of course, one of those ways. But, as Appleby emphasises, this kind of core substantive law offering is only the tip of a potentially ‘transformative’ iceberg.
Social context education
As might be expected, the ALRC’s conception of judicial education as impartiality-enhancing, or impartiality-enabling, foregrounds what have come to be known as ‘social context’ programmes, including anti-bias and cultural competency training. Despite their (somewhat ironic) vulnerability to criticism as risking partiality through ‘indoctrination’, these programmes have a long pedigree in Australia. The Report provides welcome public reaffirmation of their centrality to an effective judicial curriculum.
Assisting judges to do the ‘hard work’ of understanding and addressing bias in all its manifestations is a complex educational proposition, requiring considerable receptiveness to non-judicial expertise. The ALRC begins by emphasising the importance of training judges to understand themselves as humans who, ‘notwithstanding their role as professional decision makers, are necessarily constrained by the limits of human cognition and reasoning’. Key here, as emphasised in consultation, is achieving ‘greater humility about the fact that judicial decision-making can be biased by irrelevant factors (and less of a sense that ‘bias’ was a personal and professional failing)’. Then there is the urgent need to address the implications of specific biases, both personal and institutional, for the exercise of judicial functions. Work in this space began decades ago with gender and race, and its scope and complexity continue to expand to reflect evolving expert knowledge. However, as with Australian judicial education generally, current provision remains patchy. A degree of selectivity here is inevitable and appropriate, given both the constraints on judicial time and resources and the range of modern judicial roles. There is evidently work to be done in structural terms, though, to ensure that particular judicial audiences have access to the programmes most relevant to them. Thirdly, and no less crucially, all judges need to be equipped to anticipate and to manage litigants’ potential experiences and perceptions of bias, particularly in cross-cultural situations. Recommendation 10 singles out the imperative of supporting Australian judges to provide a culturally safe environment for Aboriginal and Torres Strait Islander people. Both the depth of comparative influence in the Report, and the distance yet to travel in Australia, are well illustrated by references to New Zealand’s judicial education system, in which tikanga Māori and te reo Māori are increasingly central.
The underlying point here is that no case-specific procedure for managing bias can obviate the need for strategies which ‘guard against an unacceptable risk, at an institutional level, of improper influences on decision-making’. Systematic education on bias and cultural competence does, in this sense, fulfil a ‘threat mitigation’ function, which could perhaps be more directly recognised.
Core skills in judge-craft
But the effective performance of impartiality, in the more dynamic sense in which the ALRC frames it, requires even more of modern judges. The third classic category of judicial education programmes is ‘judge-craft’, often understood in terms of the legal technical skill-set which dominated traditional conceptions of judicial merit. The Report approaches this concept in broader and more aspirational terms. It is interesting to see the ALRC drawing here not only on evolving discussions of merit criteria for appointments, which continue to be politically and culturally loaded, but on the National Judicial College’s recent publication Attaining Judicial Excellence. This document is directed to existing rather than prospective judges and is expressly intended to inform the design of professional development programmes. (As the ALRC observes, it is currently the closest approximation of an overarching domestic education curriculum, since the 2007 National Curriculum was removed from circulation. A ‘more coherent approach’ will require the acceleration of ongoing work in this regard.) What the Report highlights, drawing on a rich vein of domestic scholarship, is the increasing centrality of skills in communication and emotion management – and related skills in managing stress and mental health – as crucial to litigant perceptions of procedural justice, as well as to judicial resilience and well-being. These skills were not traditionally prioritised in the successful barristerial careers that prefaced judicial appointments: but they can, and absolutely should, be prioritised for all judicial officers.
Responsive and reflective education
Reflecting the focus on litigants’ experiences of impartiality, the Report also recognises the potential role of education as corrective, or remedial. Many social context initiatives fall broadly into this category, in seeking to address systemic biases. The ALRC acknowledges the continuing importance of ensuring that judge-led curriculum design is adequately responsive to areas of external concern. There are interesting questions raised about the potential contribution of data analytics in this space, for example through implicit bias analysis of judgments to support the design of cultural competency training.
A more pointed question is whether individual participation in judicial education can, or should, serve as an accountability mechanism in the wake of concerns about substandard behaviour, either publicly (that is, to a complainant’s knowledge) or privately (behind the institutional veil). This remains sensitive terrain, which another post in this forum considers more directly. It bears noting that the sensitivity may actually be greater where perceived bias stems from a skill deficit rather than active misconduct, since judicial complaints and disciplinary processes are in principle supposed to confine themselves to the latter. Identifying potential skill deficits for the purposes of educational planning is a significant challenge. There is still relatively little domestic appetite for any form of performance review, reflecting the same concerns for independence that underpin the voluntary nature of judicial education generally. The Report does, however, note the adoption in some Australian courts of voluntary 360 degree feedback processes. The ALRC also highlights the institutional integration of complaints and educative processes that its proposed Judicial Commission model could facilitate, as seen at the state level in jurisdictions like New South Wales.
Unless judges are willing and able to recognise their own areas of potential fallibility, there is always the risk that educational opportunities will not benefit those who need them most. In this regard, a particularly welcome aspect of the Report is the emphasis placed by the ALRC on reflective practice as another core judicial competency. This form of practice can be directly manifested within an educational or performance review setting, for example by exposing a group of judges to litigants sharing their lived experiences, or even potentially through the use of individual analytics to offer tailored confidential feedback. It can also be facilitated by giving judges the skills to engage in reflective practice independently, helping to compensate for the absence of more structured processes. Reflective practice supports judges to evaluate their own performance of impartiality and recognise their own evolving educational needs. It has the added benefit of being unobjectionable from an independence perspective.
The educational implications of diversity
There is a still further dimension of judicial education which is brought into focus by the ALRC’s commitment to increasing judicial diversity, and its general emphasis on the performative dimension of judging. The Report recognises that judicial education assumes greater importance, and will require greater resourcing and individualisation, as the bench continues to become more diverse. It is vital in public confidence terms, as well as for judicial well-being and collegiality, to minimise the perception of significant inconsistencies in initial competence and the associated spectre of judge-shopping. That risk seems fairly well understood as regards the technical skills, such as familiarity with rules of evidence and procedure, which could traditionally be transferred from practice at the senior bar. But it may also go the other way, considering the broad framing of competence adopted by the ALRC, and especially where perceptions of impartiality are concerned. Cultural competence and emotion management skills, for example, might be significantly more developed in new appointees from community justice backgrounds. Communication and people management skills might be more developed in appointees with adjudicative (as distinct from advocacy) backgrounds.
All of this adds to the argument for recalibrating the focus of judicial education efforts towards comprehensive initial training, preferably before judges have real litigants in front of them. It is wonderful in this regard to see the Report affirming the potential role of pre-appointment education – never before formally considered in Australia – in supporting judges from any background to hit the ground running. And it bears emphasis that since all judges need all these core skills, it is not a question of education serving to disguise or to mitigate any negative implications of diversity, but rather of accepting that there is no longer a single paradigm candidate. (A possible exception to this is the case of highly specialised judicial positions, which are beyond the scope of this post.)
There is a trickier question about the extent, if any, to which judicial education should be attempting to smooth out differences in judicial style and temperament, as distinct from judicial skill. Such differences are likely to become more pronounced as homogeneity ceases to be an objective of judicial selection processes, and as more, but likely not all, judges embrace a less detached conception of impartiality. It might be thought that skills training of the kind discussed above will ameliorate these differences between individual judges to the point where they do not pose a risk to perceptions of impartiality. Or it might not. Consistency is important in judicial contexts, and the one possible advantage of the traditionally unrepresentative judiciary was the uniform public face that it tended to present. But litigants are not uniform in their own perceptions, as the ALRC emphasises, and modelling difference has value in itself. Bearing in mind the Report’s focus on the limits of impartiality, this may be an area in which both litigants and judges need to be given the benefit of the doubt, and in which attempts to educate in the interests of consistency could do more harm than good.
Conclusion
It is no exaggeration to say that implementing the recommendations in this Report would ‘unleash the transformative potential of judicial education’ in Australia. That is so not only in relation to supporting impartiality, in which the ALRC shows education to play a role more multi-faceted and fundamental than may have been generally appreciated. In a system in which judges cannot, by design, be removed or even sanctioned for incompetence, one might assume that the proactive generation and public demonstration of competence should be front and centre of judicial regulatory design. Yet it has been harder in this area than almost any other to penetrate the shroud of judicial mystique, and to engage publicly with judges as human beings who are parachuted into a new and extraordinarily demanding professional life. The symbolic power of the ALRC’s embrace of ‘structured and transparent’ education as an asset rather than a threat to impartiality and independence is significant, particularly given the perpetual challenges of resourcing in this area. It also provides a platform for future work dedicated unapologetically to the imperative of judicial competence, within and beyond the areas canvassed in the Report.
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Jessica Kerr is a PhD candidate and lecturer at the University of Western Australia Law School.
Suggested citation: Jessica Kerr, ‘Bias and judicial education’ on AUSPUBLAW (19 August 2022) <https://www.auspublaw.org/blog/2022/08/bias-and-judicial-education>