Catriona MacLennan: Greater diversity needed in judiciary

The Herald this week examines issues for our judiciary. Today, Catriona MacLennan looks at gender balance.

Men dominate the New Zealand judiciary, and it's a similar situation in other developed countries. Photo / Mark Mitchell
Men dominate the New Zealand judiciary, and it's a similar situation in other developed countries. Photo / Mark Mitchell

New Zealand prides itself on being progressive in appointing women to high office. The Chief Justice, Dame Sian Elias; the Chief High Court Judge, Justice Helen Winkelman; and the Chief District Court Judge, Jan-Marie Doogue, are all women.

The fact that three of the four Heads of Bench in this country are female is pointed to as evidence that women have made strides in the legal profession and are well represented in the upper echelons both of law and of the judiciary.

However, an examination of the statistics paints a contrary picture and demonstrates that New Zealand has nothing to congratulate itself on in this respect.

At present, 72 per cent of New Zealand's judges are male and 28 per cent are female. This breaks down as follows:

Supreme Court - 60 per cent male; 40 per cent female

Court of Appeal - 80 per cent male; 20 per cent female

High Court - 79 per cent male; 21 per cent female

District Court - 69 per cent male; 31 per cent female.

There are no statistics on ethnic diversity in the judiciary, as the number of non-Pakeha judges at all levels of the court system is so tiny.

The Family Court was set up more than 30 years ago. All three Principal Family Court Judges who have presided over the court in that time have been Pakeha and male.

It has long been argued that, as more women and non-Pakeha people went through law school and gained years of experience in law, diversity in the judiciary would increase.

This is the same "trickle up" theory which is used in relation to female law firm partners, but it has not worked in either context, despite the fact more women than men have been graduating from law school for a number of years.

The New Zealand Law Society's magazine LawTalk calculates that 3463 women are eligible for appointment as judges, based simply on the raw criterion of at least seven years' admission as lawyers.

A highly unrepresentative judiciary is not only a New Zealand problem. The position is similar in many other countries.

For example, although the population of the United States is more diverse than ever and law school and state bar populations are increasingly diverse, white males continue to dominate the bench. The Brennan Centre for Justice calculates that white males are over-represented on state appellate benches by a margin of almost two-to-one compared to their share of the population, while almost every other demographic group is under-represented.

Arizona's population is 40 per cent non-white but the state has no minority Supreme Court justices and minorities comprise only 18 per cent of its Court of Appeal judges and 16 per cent of Superior Court judges. In Rhode Island, 21 per cent of the population is non-white but there are no minority Supreme Court justices and only two out of 22 Superior Court judges are from non-white ethnic groups. Utah has an 18 per cent non-white population but no minority Supreme Court justices and only four out of 70 non-white District Court judges.

In the United Kingdom, 2010 figures showed that only 20 per cent of judges were women and only 4.8 per cent of the judiciary was from ethnic minorities, placing England and Wales fourth from the bottom in terms of judicial diversity among European nations.

United Kingdom Supreme Court Judge Lord Sumption cautioned in November 2012 that it might take more than 50 years to achieve judicial diversity if present appointment procedures were retained. He said that positive discrimination in favour of women and ethnic minorities was likely to be the only method to accelerate progress significantly and should be more widely debated as an option.

Another Supreme Court Judge, Lady Hale, in February echoed those views, warning that Britain was out of step with the rest of the world in terms of judicial diversity and positive discrimination might be required to redress the gender imbalance. Lady Hale noted that one criterion for appointment to the Supreme Court was the need for expertise in the law and practice of Scotland and Northern Ireland.

She went on to ask whether bringing a minority perspective to the business of judging in the higher courts could in itself be considered an occupational qualification.

"So do we need to revive the argument for some special provision, akin to that in Northern Ireland, to enable the appointing commissions to take racial or gender balance into account when making their appointments? Would that really be such a bad thing? I think not."

A forum at the University of Auckland's Fale Pasifika in July 2012 discussed similar notions when it examined why there were so few Pasifika judges in New Zealand. Speakers questioned why diversity was not in itself considered a criterion for appointment, with the chairperson asking why "merit" in relation to appointments was so narrowly defined to include a law degree, years of experience in practice and references, when the requirements for a good judge were so much broader.

In particular, communication skills, the ability to relate to a broad cross-section of people, and facility in explaining legal concepts in simple language are essential skills for the judiciary.

"Merit" is in itself a subjective - not an objective - concept and is invariably defined by the dominant group as comprising characteristics which its own members possess.

So what can be done to improve the position?

The Brennan Centre says systematic recruitment of minorities, active recognition of implicit bias against minority groups and explicit statements as to how diversity is to be taken into account are required to increase diversity effectively.

InBritain, the Advisory Panel on Judicial Diversity produced a report in 2010 making 52 recommendations aimed at producing a far more diverse judiciary by 2020. A Judicial Diversity Taskforce was set up and is producing annual reports on its progress towards the goal of greater diversity.

It is not an impossible goal. Across Europe, the average gender balance among judges is 52 per cent men and 48 per cent women.

New Zealand has a long way to go, both in terms of gender and of ethnicity, but recognising the issue would be a good start.

Catriona MacLennan is an Auckland barrister.

- NZ Herald

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