29.04.2021
This paper aims to shed light on the psychology behind the traditionally ‘opaque exercise of judging’. First, the paper explains how heuristics, attitudes, and stereotypes may influence (and bias) human decision-making. It then discusses research that has found that judges are likely to be vulnerable to many of the ordinary cognitive and social biases that pervade human cognition, although they may be able to ‘impressively suppress’ bias in some circumstances. It briefly explores how these ideas interact with the court process and the law on bias.
Recognition that a judge is human does not mean that they cannot judge impartially. However, it may require additional personal and institutional strategies to remove and disrupt the influence of cognitive and social biases. The final part of this paper details interventions that have been proposed to do so.
This is one in a series of background papers produced by the Australian Law Reform Commission as part of its Review of Judicial Impartiality.
In April 2021, the ALRC will publish a Consultation Paper containing questions and draft proposals for public comment. A formal call for submissions will be made on its release. In addition, feedback on the background papers is welcome at any time by email to impartiality@alrc.gov.au.