Cognitive Biases, Social Biases, and the Law

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How does the law on bias square with what we now know about human decision-making?

How does the law on bias fit with what we know about how judges make decisions and the conscious and unconscious influences on those decisions? Background Paper JI6 explores the expanded knowledge we now have about how human decision-making works. We now know that the brain will often take shortcuts when making decisions — and while these shortcuts are generally useful and allow us to function — they bias decision-making and can lead to error. These shortcuts often operate at the subconscious level, so we don’t even know it is happening. And they’re more likely to be at play when we make decisions quickly, or under stress (JI6:11–13).

Background Paper JI6 explores two key types of biases arising from these shortcuts that have increasingly been considered relevant to judicial decision-making.  The first are ‘cognitive biases’ — systematic tendencies in how we think that might lead to error — such as the tendency to interpret information in a way that confirms and reinforces pre-existing beliefs and opinions (JI6:14–17). Connected to these are ‘social biases’, by which people ‘automatically form impressions of people, or leap to conclusions, based on the social group that they are a member of’. These social biases are ‘driven by attitudes and stereotypes that we have about social categories, such as genders and races’ (JI6:14, 18–24). In recent years behavioural scientists, legal academics, economists, and psychologists have carried out extensive research to measure the overall impact of these biases — including on judicial decision-making — and it can be significant. However the research also shows that — through the use of certain strategies — their impact can often be mitigated, or even removed (JI6:16–17, 25–31).

How does the law on bias measure up in light of these more insidious biases that are difficult to assess and predict in an individual case? In some ways the law already employs mechanisms to help counter them. For example, the requirement for reasoned decision-making focuses the mind on more systematic, conscious, types of thinking. In addition, their oath of office and strong ethical commitment to impartiality (see JI5.12–24) is one way of motivating judges towards being reflective about biases they may hold and to take steps to counter them. When considering bias, judges need to consider what a ‘fair-minded lay observer’ would think of the situation. This can assist judges to take a step back rather than simply relying on information confirming their initial ‘hunch’ (JI6:49). The law also considers exposure to irrelevant information as a potential reason for judges to remove themselves from a case (JI1:33) notwithstanding the law predates our detailed scientific understanding that it is cognitively very difficult for even trained decision-makers to put irrelevant information out of their mind (JI6:17).

In other ways the law and procedures associated with it do not necessarily sit well with recent knowledge about decision-making. For example, the self-recusal procedure requires the judge who is challenged for bias to make the decision whether or not to stand aside (see further JI2). This places an even greater burden on judges (and appears even more strange to observers) now that we know that even judges have a ‘bias blind spot’ and are much more likely to perceive themselves as less biased than others (JI2.22 and JI6.53). In light of this, the ALRC has proposed a change in procedures so that a decision on whether a judge should stand aside could be referred to another judge in some circumstances, or in appeal cases be decided by the court as a whole (Proposal 6 and Proposal 8). Alternatively, the ALRC has asked whether appeal procedures while the case is ongoing should be formalised so that any decision not to stand aside can be reviewed quickly (Question 7).

In relation to social biases, the law will only deal with these if a judge clearly expresses them, such as through clearly discriminatory language or (possibly) by express reliance on a social stereotype (JI6.41). That leaves what we now know about the more invidious impact of social biases — that we all hold — untouched by the law on bias. There may well be good reasons for that, given they are so difficult to measure and predict in an individual case and the fact that they are so closely tied to a judge’s identity (JI6.41–44). But our knowledge about the overall impact of social biases means that there is an important imperative to acknowledge and address them through other institutional structures. In its Consultation Paper the ALRC has made a number of proposals and asked questions in relation to issues that it considers potentially important in this area. These include in relation to judicial appointments and judicial diversity (Proposal 14, Proposal 15, and Question 16) judicial orientation and education (Proposal 17, Proposal 18, and Question 19), ethical and other support of judges (Question 20 and Question 21), and the collection of data (Proposal 23, Question 24 and Question 25).

Find out more about making a submission so we can hear your views.

Spotlight On: Proposals and Questions

View the full list of ALRC proposals and questions: Judicial Impartiality: Consultation Paper (CP 1, 2021)


The Federal Circuit Court of Australia, the Family Court of Australia, and the Federal Court of Australia should amend their rules of court to require a judge sitting alone to transfer certain applications for the sitting judge’s disqualification to a duty judge for determination.

Options for reform include requiring transfer:
Option A)  when the application raises specific issues or alleges specified types of actual or apprehended bias; or
Option B)  when the sitting judge considers the application is reasonably arguable; or
Option C)  when the sitting judge considers it appropriate.


Should Commonwealth courts formalise the availability of an interlocutory appeal procedure for applications relating to bias before a single judge court?


The Federal Court of Australia, the Family Court of Australia, and the High Court of Australia should promulgate a Practice Direction or Practice Note to provide that decisions on applications for disqualification made in relation to a judge on a multi-member court should be determined by the court as constituted.


The Australian Government should commit to a more transparent process for appointing federal judicial officers that involves a call for expressions of interest, publication of criteria for appointment, and explicitly aims for a suitably-qualified pool of candidates who reflect the diversity of the community.


The Attorney-General of Australia should report annually statistics on the diversity of the federal judiciary, including, as a minimum, data on ethnicity, gender, age, and professional background.


What should be done to increase diversity in the legal profession and to support lawyers from sections of the community that are traditionally underrepresented in judicial appointments to thrive in the profession?


Each Commonwealth court should commit to providing all judges newly-appointed to judicial office with the opportunity to take part in a court-specific orientation program upon appointment, as specified under the National Standard for Professional Development for Australian Judicial Officers, and report on the orientation program in their Annual Report.


Each Commonwealth court (excluding the High Court) should circulate annually a list of core judicial education courses or other training that judges are encouraged to attend at specified stages of their judicial career, and ensure sufficient time is set aside for judges to attend them.
Core courses in the early stages of every judicial career should comprehensively cover (i) the psychology of decision-making, (ii) diversity, intersectionality, and comprehensive cultural competency, and, specifically (iii) cultural competency in relation to Aboriginal and Torres Strait Islander peoples.


What more should be done to map, coordinate, monitor, and develop ongoing judicial education programs in relation to cultural competency relevant to the federal judiciary, and to ensure that the specific needs of each Commonwealth court are met? Which bodies should be involved in this process?


Should more structured systems of ethical and other types of support be provided to assist judges with difficult ethical questions, including in relation to conflicts of interest and recusal, and in relation to issues affecting their capacity to fulfil their judicial function? If so, how should such systems be developed and what should their key features be? What role could a future Federal Judicial Commission play in this regard?


What further steps, if any, should be taken by the Commonwealth courts or others to ensure that any implicit social biases and a lack of cultural competency do not impact negatively on judicial impartiality, and to build the trust of communities with lower levels of confidence in judicial impartiality? Who should be responsible for implementing these?


Commonwealth courts should introduce methodologically sound processes to seek structured feedback from court users, including litigants and practitioners, about their satisfaction with the court process, in a way that allows any concerns about experiences of a lack of judicial impartiality to be raised.


Are the measures that are already in place in Commonwealth courts to collect feedback from, and measure satisfaction of, court users sufficient and appropriate?


What other data relevant to judicial impartiality and bias (if any) should the Commonwealth courts, or other bodies, collect, and for what purposes?

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