Crunching the numbers
The MRC is not alone in calling for the use of statistical data to improve judicial integrity. But its voice was the only to be censored for actually undertaking the exercise. By James Mathias.
What do anonymous, bewildered and Diogenes all have in common?
Well, they all made very valid comments to an article published this week in a well known legal daily. The article was about the MRC’s submission to the Australian Law Reform Commission’s Inquiry into Judicial Impartiality.
Anonymous wrote: “Judges must be accountable for their decisions and their statements in full. Judges make (common) law and accordingly are part of the overall political process - regardless of how apolitical they may wish to appear. While of course each case will turn on its facts, over a longer period of time (e.g. several years of decisions) patterns will emerge.”
Bewildered agreed, and added: “It's not unreasonable to apply some statistical analysis to their decisions and to acknowledge where a particular trend emerges from that. None of it seemed to be defamatory, emotive, opinionated, unfounded, unsupported or otherwise unsuitable for public consumption.”
Given the article quoted only statements from the Australian Bar Association and ALRC that tried to diminish the work undertaken in our submission, and did not provide the MRC an opportunity to respond, these comments are very heartening.
But it isn’t just comments below many of the news articles this last week supporting the work of the MRC that have been welcomed. Rather surprisingly our work finds support from heavy hitting submissions made to and actually published by the Australian Law Reform Commission.
Take for example the Law Council of Australia who say in their submission, “It notes that disregarding a statistical analysis of a judge’s decisions for the purposes of assessing actual or apprehended bias may sit uncomfortably with community expectations, and it suggests that the ALRC should further consider the argument that in some cases ‘the numbers do speak for themselves’.” The Law Council goes on to say that this is an appropriate topic for the ALRC to investigate.
Speaking about the use of statistics in their submission, the National Justice Project says, “We also refer to and support the proposal in the Macquarie University and Behavioural Insights Team submission to this Review to collect statistical data on the outcomes of decision making to allow for data to be broken down by individual judge … This would allow individual judges to be confronted with data on their own decision-making which may suggest the existence of certain implicit biases.”
The submission referred to and submitted by the Macquarie University Behavioural Insights Team hits the bullseye when they support the use of statistical analysis and say, “One approach shown to be effective in helping people overcome implicit social biases involves collecting statistical data on the outcomes of decision making. In the judicial context, this would involve collecting data breaking down the different outcomes before individual judges for groups potentially likely to be targets of implicit bias.”
Consider this then – the ALRC has published submissions by many organisations promoting the use of statistical data broken down into the individual decisions made by judges. These submissions unstintingly support this as a way to reduce instances of apprehended bias and to further improve transparency of the judiciary.
But when a submission is made that actually undertakes the exercise, as ours did, it is somehow defamatory and should not be published.
Which brings me to the aptly named Diogenes, whose comments on the aforementioned article in the well known legal daily were: “The numbers need no comment - they speak for themselves.”