The Judiciary and Bias.

1/ Will a bi-sexual supreme court judge give unbiased neutral judgments on cases of sexual misconduct ?

2/ Will an Aboriginal Magistrate give an unbiased judgment on an issue of Land Rights ?

3/ Will a Lebanese Muslim Magistrate give an unbiased judgment on a Middle Eastern youth accused of starting major race riots ?

4/ Will Jewish Federal court judge given an unbiased judgment in the case of Anti Semitism or regarding the case of a high profile Jewish retailing identity or those involved in insider trading ?

Unlikely ? 2 of the above have been reported in the media, and seem to indicate that based on track record, the answer to these questions should be ‘no’.

I contend, that in order to avoid any possibility of bias, Judges and Magistrates should be automatically barred from presiding over cases where they share the ethnicity, culture, or religion of the accused. With the exception of predominantly Australian judges of U.K. background. (in the broadest inclusive ethnic sense of that term)

Is this a ‘racist’ statement ? It boils down to a balance of probabilities. Due to the established order of Anglo Australians historically, and the predominance of the British background in most citizens, the likelihood of bias is minimal. There is no sense of ‘ethnic competition’.

On one issue I grant that there IS a strong likelihood of bias by Anglo background judges, and that is on the issue of Land Rights. It seems also the case that Judges are appointed with political flavor in mind. It goes without saying that this is the case, as positions for the ultimate courts in the land are so hotly contested by political parties, especially in the United States supreme court. I hardly think Australia and our High Court appointments are any different.

Looking at the ethno religious composition of the Victorian Federal court bench, one could be forgiven for gaining the impression that one particular socio/cultural/religious group is inherently superior in matters of Law, judging by their high representation.

Invariably, judges will find they can relate to one party more than another. There is little in practice that can be done about this.

The best we can do is to appoint judges who are highly trained in the principles of fairness, and who will strive to judge each case on its merits. Unfortunately, emotions and prejudices powerfully influence the way people, even judges, think. You David, are a perfect example of this - at times you obviously strive to be logical, but most who stand outside your religious frame of referrence, see that your logic is often distorted by your religious prejudices. It seems to be an unavoidable human failing which some manage better than others, but which no-one can entirely overcome. The worst thing is that almost everyone believes they are the only one not so affected.

It also doesn't help that so many of our judiciary are picked for political reasons rather than on merit. I wouldn't want to name names, but there is a certain aboriginal magistrate in NSW whose antics and decisions indicate such a lack of judicial credibility that one can only suppose she was selected for reasons other than merit.

Whilst I am unaware of the 'ethnic' group you are referring to in Victoria, (I'm in NSW), I was talking to a Victorian lawyer just the other day and he expressed the view that the Victorian judiciary is over-run with Bolsheviks. He was plainly being a little colourful with his language, but I think it's fair to say there is a bit of socialist philosophy entrenched in our judiciary (most of the judiciary were uni students 30+ years ago - think about it).

One recently retired Victorian judge apparently never found against a plaintiff in any civil litigation in his entire career. Now that hints at a powerful bias arising from a certain socialist mindset.

Boaz, basically what you’re saying is that only heterosexual judges from an Anglo background are capable of doing the job we’re paying them to do: that is, to apply the law, without prejudice. Any judge or magistrate who is not hetero, or of Anglo background (according to you) is incapable of doing their job under some circumstances.

This is an outrageous assertion, even for you.

If you have evidence that any of the judges or magistrates in the situations you have outlined have failed in their duties, then you should provide that evidence. Otherwise your suggestion seems like what you have rhetorically suggested: “racist”.

I am only vaguely familiar with one of the cases you have mentioned: that of a magistrate with Lebanese background sentencing an 18 year old Lebanese youth on assault charges. While I don’t have a complete knowledge of the evidence in the case, I cannot see any hint of impropriety or bias in her decision. The sentence was well within the range I would expect for such an offender and such an offence, given the details I have access to on the public record. The only unusual detail, as far as I am aware, is that she used their shared ethnicity to read the riot act Lebbo to Lebbo, making it very clear what behavior is expected of a young man of his ethnicity in an Australian context. It would have been hard for a non Lebanese magistrate to have included that element. Good on her for being creative. But if you reckon the sentence was soft, then you should explain why, and why the prosecution didn’t appeal.

The underlying assumption of your post is that there is one type of judge who is impartial, (Anglo and hetero) and all the others are suspect. The reality is that judges and magistrates all have life experiences which they will draw on in their sentencing. The important thing is that they stick to the law. If they're not doing this, then provide evidence to back your claim.

Hi Snout..thanx for taking the discussion further :)

I only feel 'non Anglo/Heterosexual' judges could be biased in cases where they encounter a 'natural' tendency to bias such as with an Aboriginal judge and a land rights case. I'm sure that in the wider aspects of the law, such a judge would be as impartial as the next.

The case of the Bisexual Sydney Judge was quite big at the time. He committed suicide when it all came out.
The media indicated that his record of decisions on cases of a sexual nature seemed to be more lenient than one would expect.

The sentence by the Lebanese magistrate should be seen in the bigger context of the Cronulla events, including the punishment dished out to someone who did 'nothing' to anyone, but was in the possession of a branch for self protection. Please re-read my other post.
'Anglo with branch'= Arrested, Convicted, Jailed for 4 months
'Lebanese up for Assault/Attack resulting in physical injury'= Lecture and Community service.

It just does not sound right to me.

As a spin off thought... "Oppression of a minority can result in isolated incidences of terrorism/ revenge.. but attacks on a majority can result in massive reprisals/genocide"

Sadly, we have had recent reports of gangs in Maroubra hunting Asians away from having a picnic. I don't know with confidence the racial aspect of that incident. But I do know one thing with confidence. Asians had nothing to do with the Cronulla background issues.

I am very concerned that an unthoughtout cultural policy which emphasizes diversity can only have one predictable result, and it is found in my last paragraph. The Judicial/Political element in mind for this thread is just part of the problem, where it 'could' be part of the solution.

The problem with emphasizing diversity is that when such things occur, they are always viewed with a suspicious Them/Us mentality by all sides.

Alternatively, a pro-active cultural/social policy could contribute to a more confident and most of all secure Anglo population, reducing the likelihood of knee jerk aggressive outbursts.

cheers

David, I think all sorts of biases exist across the whole judiciary. But for many individuals within it, no significant biases exist, but maybe seen to exist because of their racial, ethnic, cultural or religious background or past practices, comments or associations.

Bias in its broadest interpretation is automatic in people who see the same presentation in different ways or place different levels of significance on different aspects of it. This sort of bias is impossible to escape.

We can read bias into any decision that we don’t agree with.

So I really don’t think that the racial, ethnic, cultural or religious background of magistrates, politicians, police or anyone else involved in decision-making is of any particular level of significance.

What appears to be really significant is the buck-passing syndrome between law-enforcers and punishers (police and courts), whereby the police often do a substandard job and expect the courts to sort it out properly, while the courts think that if the person was charged in the first place, the police must have had a good reason and that their evidence or hearsay is gospel, unless there is very strong opposition expressed by the alleged offender or his counsel.

I get the feeling that this syndrome is chronic, especially with minor offences where people don’t have legal representation and don’t know when or how to properly stand up for themselves in court, let alone where actually going to court and defending one’s self is impractically much more expensive than the fine.

And my greatest concern – an appalling lack of regard for the ‘innocent-until-proven-guilty or shown-to-be-guilty-beyond-a-reasonable-doubt’ dictum.

So, I do think that a very strong sense of bias exists within the judiciary. But it is only related to the aspects that you mention in a minor way.

Hi Ludwig

you said:

"So I really don’t think that the racial, ethnic, cultural or religious background of magistrates, politicians, police or anyone else involved in decision-making is of any particular level of significance".

I think that any bias would only reveal itself over a pattern of decisions rather than an individual one we disagreed with.

Funnily enough, when I wrote the piece I didn't have in mind the Catch the Fire case where bias was not so much the issue, it was simply a misunderstanding of the Evangelical Christian mindset.

Probably the Cronulla aftermath is where I detected a pattern.
But also, in the real world, it is probably impossible to escape our biases, specially when with 2 different magistrates the likelihood of the same sentence for the same offence and circumstance is low.

I would love to be a fly on the wall though of an Aboriginal judge and a land rights case :)
Still, even then, given the fact that the British used other Maoris to do most of the killing of their fellows (of different tribes) nothing would suprise me. An Aboriginal Judge might go even harder against his own... stranger things have happened.
Thanx for your thoughts.