A fully diverse judiciary is important to the quality of the substantive law. This is because the path that judges have walked through life shapes how they will and can develop the law, Chief Justice Dame Helen Winkelmann says.
Dame Helen delivered the annual Dame Silvia Cartwright Address in Auckland on 17 October, with the title What right do we have? Securing judicial legitimacy in changing times.
"If I were to set out the full question, it would be "What right do we have to sit in judgment on our fellow citizens?' The judiciary's claim to legitimacy rests in large part upon its ability to provide equal treatment before the law and its commitment to affording all those who come before the courts the dignity of a fair hearing," she said.
In a democracy, judicial legitimacy rests upon public confidence that judges, and the judiciary as a whole, are independent, impartial, skilled, and representative of the community in the work they do. If a judge is seen to be lacking in one or other of those criteria, the public will lose confidence in that judge.
"But if the institution of the judiciary is seen to be deficient in one or more of those respects, then the public will lose confidence in the judiciary and, it follows, it is the judiciary which will lose its legitimacy."
"Equality" has still not come to the judiciary. At 14 March 2019, 82 of the 237 judges across all courts were women - approximately 35%. Māori are underrepresented in our judiciary and this is cause for concern given the critical issues that remain to be worked out in the area of Treaty obligations and the place of tikanga in our law. It is a troubling reality that an overwhelmingly pakeha judiciary deals with a predominately Māori cohort of defendants.
A diverse judiciary
Focusing on the judiciary as representative of the community, Dame Helen said the democratic ideal of a diverse judiciary is an important one. Fairness and justice should be there for everybody to see.
"The law is full of concepts which require judges to draw upon their knowledge of society: the notion of the reasonable person on the Clapham Omnibus, Molesworth Street or Te Rakau Drive Bus; the reasonable expectation of privacy; a reasonable belief in consent; the sentence required to hold someone to account for their offending, or to provide for the interests of the victim; the sensibility and expectation of public behaviour brought to mind by the judge when determining what is disorderly and offensive conduct.
"The list goes on. The law is suffused with tests informed by what the community expects, what the community regards as reasonable, or how reasonable people will react in a given situation."
Dame Helen said she was not suggesting that judges act as mere instrumentalities of the community in applying this knowledge. "But what I do say is that there should be a diversity of experience which is reflected in the judicial response to the cases that come before the courts."
In creating and developing the common law, judges have always looked to their society and to their communities for the values they apply. And the community in turn, looks back to the courts, she said.
"This secures certainty and stability in the law, protects the law from passing waves of populism, while keeping it grounded in the values of the community. This common law method lies at the heart of the legitimacy of the judiciary because it ensures that the values judges apply are those the community shares and understands.
"What does this mean for how the judiciary should act or be administered? I believe that several things flow from it. First, it means that we are right to place importance upon diversity in judicial appointment. The diversity we seek is not aimed at a statistical mirror image of society. 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 that there is a richness of thought and experience in our judiciary available to contribute to the development of the law. Through judicial appointment we should also look to achieve greater ethnic diversity and to recruit judges from diverse socio-economic backgrounds. The work in this area is far from done.
"We know from information collected about the cohort of defendants that most who come before the courts carry burdens which hamper their ability to engage fully with economic and social structures within our society and importantly for our purposes, hamper their ability to engage fully with our courts. They carry the burdens of disability, mental health, addiction or linguistic difficulties and almost certainly, a common denominator is poverty."
Part of the duty of judges is to secure fair hearings, Dame Helen said. Knowledge of how life is for those who exist at the margins can be critical in any given case. It may provide important, and mitigating context for a defendant’s offending, it might suggest questions for the judge to ask of counsel or the defendant, and it might assist counsel and the judge in ensuring that the defendant understands what is going on in court.
Recruitment to the judiciary
The judiciary is recruited from the profession, Dame Helen said, and that profession is likely to be made up of people who come from the most affluent homes.
"Studies of the intake of students into universities and into law schools tell us that only one in 100 entrants to New Zealand’s elite university courses come from the most deprived homes. Data sourced from six universities shows that 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% came from the poorest," she said.
This data is cause for concern. No doubt many factors contribute to this inequitable outcome, but among them is surely the financial obstacle that exists for those from poorer homes who want to pursue tertiary studies. Research has showed that high decile schools received four times the number of entry level scholarships as those in low decile schools. Financial assistance is going overwhelmingly to students from high decile schools.
"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. This may seem long-term thinking, but long-term thinking is needed."
An active approach to the issue is essential, Dame Helen said. "We cannot accept that our future judiciary will be comprised only from those from the most affluent backgrounds.
"Beyond diversity of gender, ethnicity and background, I believe we should be looking for judges who have diversity of experience in their work. Those who spend twenty years doing work for corporate interests will have experience only of the justice needs and concerns of those clients. I do not diminish the importance to the law of that experience as it is critical that our senior courts continue to recruit lawyers who have experience of commercial and corporate law."
However, while experience of working in the business sector is important, in an ideal world, lawyers appointed to the bench would have at least some experience beyond that, she said.
It is also important for the legitimacy of the New Zealand judiciary that judges receive education in tikanga Māori and are offered support in acquiring basic skills in Te Reo Māori, Dame Helen said.
"Knowledge of tikanga Māori, or Māori custom, is essential knowledge for judging in New Zealand. Tikanga Māori forms part of the values of the common law available to be weighed by judges when deciding cases before them."
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 then is for the law schools, the New Zealand Law Society, and other professional bodies to ensure adequate education is offered in relation to tikanga, she said.