Diversify the judiciary: a call to action from the chief
Chief Justice Dame Helen Winkelmann: It is a troubling reality that an overwhelmingly Pakeha judiciary deals with predominantly Maori defendants
Calling for an “active approach” to greater diversity in the appointment of judges, Chief Justice Dame Helen Winkelmann has warned that public confidence in the judiciary could be at risk if judges are not seen as representative of the communities in which they work.
In her Dame Silvia Cartwright lecture at Auckland’s Northern Club last Thursday evening, Justice Winkelmann said to maintain confidence in the legitimacy of the judiciary, more diversity was needed in four areas: gender, ethnicity, socioeconomic background and work experience.
Justice Winkelman also tackled the issue of judicial bullying in her address, saying a “judicial temperament” was one of the key competencies expected of a judge.
“Once upon a time it was accepted that judges could be abrupt and even rude to counsel, and occasionally litigants,” she said.
“But a growing intolerance for bullying in society has now extended to bullying by those who exercise power. That is how it should be. My predecessor, Dame Sian Elias, was right to say that bullying by judges is not acceptable and that all judges are expected to deal with litigants, witnesses and counsel with respect and courtesy.”
But the major thrust of Justice Winkelmann address was the rethinking she believes is needed to build the relationship between the courts and the community.
“Great connection is best achieved by involving that community in the processes of the delivery of justice,” she said. “In reality, the law has always looked to the community for the values it applies in its judgments and, in so doing, secured the acceptability of the courts’ decisions.”
Greater diversity in judicial appointments is a core element of this community connection.
As an example, she cited gender equality which is yet to come to the judiciary, though improvements had been made in the past 25 years.
As of 14 March 2019, only 82 of New Zealand’s 237 judges were women – about 35%. Apart from the Supreme Court (which has a 50:50 gender split) and the Employment Court, men outnumber women across all courts.
But the judiciary needed to seek more than gender diversity, Justice Winkelmann said.
The concept of judicial diversity and what it might mean was not aimed at creating “a statistical mirror of society”. And other factors, such as judicial independence, impartiality and skill come into play in any discussion about public confidence in judges.
“But we should ensure that our judiciary is not exclusively drawn from the same narrow part of society. The diversity we aim for should be sufficient to ensure there is a richness of thought and experience in our judiciary available to contribute to the development of the law,” she said.
“A diverse judiciary has the advantage that it brings to the law knowledge of the lives of people, their challenges and their values, which might not otherwise be available.
“It contributes to strength and flexibility in reasoning because it means that problems are looked at from more than one point of view. It is standard common law method to weave community-derived expectations and values into a framework established by precedent.”
The legal profession, too, faces its own legitimacy issues as it becomes increasingly unrepresentative of the society it serves, she said.
“Lawyers need to know about the lives of those they represent so that they can offer the argument and present the evidence to properly put their client’s case before the courts.”
“While the law will not develop if the judiciary does not know about the community it serves, the same is true of the profession. It too needs to know.”
It’s a critical point because the profession acts as a funnel for recruiting judges.
“As I look ahead, I am concerned that even the [current] modicum of social-economic diversity will be difficult to maintain,” she said.
Most of the current bench was at law school in the 1970s and 1980s, “a time when the barriers for those from low socio-economic backgrounds were less formidable”. Fees were low, bursaries were available and part-time jobs were easy to get.
But times have changed: nowadays, few students from poorer backgrounds make it to university, and even fewer to elite courses such as law and medicine.
This is a problem because judges are recruited from the legal profession, Justice Winkelmann says. “And we know that the legal profession we recruit from is likely to be made up of people who come from the most affluent homes.”
Studies of university and law school intakes reveal only one in 100 students in elite courses comes from a deprived home. Data from six universities show 60% of the almost 16,000 students accepted into law, medicine and engineering in the past five years came from the richest third of homes, and just 6% from the poorest, she said.
And the fact that high decile schools receive four times the number of entry-level scholarships as those to low decile schools aggravates the problem. “What this means is that insofar as universities are providing financial assistance, it is going overwhelmingly to students from high decile schools.”
These figures, Justice Winkelmann says, should concern the universities, the law schools and the profession. “As head of the judiciary, I am concerned about their implications for judicial appointments.
“If our law schools are overwhelmingly made up of those from the most affluent schools, then so too will the profession be, and it is the profession from which judges are appointed.”
Work is being done in jurisdictions such as England and Wales, where a Judicial Diversity Committee works and reports on a strategic plan designed to target women, those from diverse ethnic backgrounds and people who demonstrate “social mobility” (the first generation of their families to attend university). Future plans include sending community outreach judges to schools and universities to promote law as a career.
“An active approach to this issue is essential,” Justice Winkelmann says. She quotes Lady Brenda Hale, President of the UK’s Supreme Court: “[i]n a democratic society, in which we are all equal citizens, it is wrong in principle for…. authority to be wielded by such a very unrepresentative section of the population”.
Gender – “quite rightly” – was the first diversity issue to be tackled by the judiciary. “It was simply unsustainable that 50% of the population should be excluded from the judiciary,” Justice Winkelmann says. It was “remarkable” that it wasn’t until 1975 that the first female appointment was made when Dame Augusta Wallace was appointed to the District Court.
And it was not until 1993 that the first female judge, Dame Silvia Cartwright, was appointed to the High Court.
Justice Winkelmann notes the headline in The New Zealand Herald at the time was “Equality comes to the High Court”. Dame Silvia has since been heard to quip that it sounded about right – one woman being the equal of about 30 men on the High Court bench.
Ethnic diversity, too, is a pressing issue. Maori are under-represented in our judiciary though they are over-represented in every negative step in our criminal justice system, Justice Winkelmann said.
“This is cause for concern, given the critical issues that remain to be worked out in the area of treaty obligations…. It is…a troubling reality that an overwhelmingly Pakeha judiciary deals with a predominantly Maori cohort of defendants.”
But diversity in judicial appointment is not enough: it is too slow and is only part of the answer, she said. The other part is judicial education, with every judge having the required knowledge to judge in a diverse society. At least, that is the ideal.
Through the Institute of Judicial Studies, judges are educated about social structures, courtroom management, and cognitive and linguistic disabilities which can make it difficult for some defendants to cope with their hearings.
But the institute has also sought help from the community to develop a diversity education program for judges.
“It is also important for the legitimacy of the New Zealand judiciary that judges receive education in tikanga Maori and are offered support in acquiring basic skills in te reo Maori,” she says.
“Knowledge of tikanga Maori, or Maori custom, is essential knowledge for judging in New Zealand. Tikanga Maori forms part of the values of the common law available to be weighted by judges when deciding cases before them.”
But even that is not sufficient, Justice Winkelmann says.
“Judicial education alone will not be enough if tikanga is to find its rightful place in the law. Lawyers need a sufficient understanding of tikanga concepts to identify and make the arguments.
“The next challenge is for the law schools, the NZ Law Society and other profession bodies to ensure adequate education is offered in relation to tikanga.”
Justice Winkelmann also threw her support behind the type of therapeutic justice being practised in several pilot courts and in the marae-based Rangatahi courts, where the processes are in accordance with tikanga and are aimed at rehabilitation.
But she says the approach of running most of these initiatives as pilots – necessary because of resource constraints – is not sustainable in the longer term.
“It carries with it the risk of different outcomes for defendants, depending upon the area in which they come before the courts. …Differential treatment on such a basis will itself ultimately be undermining of judicial legitimacy.”
Because of this, the practices and processes of these pilot courts need to be better connected to the community through the mainstream courts – a process the new Chief District Court Judge, Heemi Taumaunu, is keen to progress.
“This involves taking the best of what has been learned through these pilots and applying it throughout the District Courts,” she said. “I believe the time is right for that approach.”