New Zealand Law Society - Perspectives


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Mai Chen

Mai Chen
Mai Chen

Chen Palmer Managing Partner, Auckland University Adjunct Professor, BNZ Director, NZ Asian Leaders Chair, NZ Global Women Inaugural Chair and Superdiversity Centre for Law, Policy and Business Chair Mai Chen says the problem is not limited to gender. Women of colour are more discriminated against.

"I have just finished writing the Superdiversity Stocktake: Implications for Business, Government and New Zealand, and the pay statistics show a hierarchy with white men earning the most followed by white women, then coloured men before coloured women, who earn the least, in general.

"I've personally found being Chinese more difficult than just being a woman. You fit the stereotype even less of what a successful lawyer should look like. There's a presumption that if you look the part, then you are competent to do the job. Sometimes those who don't look the part don't benefit from that presumption.

"If you come from a different cultural context, it is harder to 'tow the line' if you don't know what the line is, or be conventional when all you know is considered unconventional."

Discrimination work

Ms Chen has always had an affinity for human rights and public law.

"Because of my background I've always had an instinctive feel for the legal issues that arise around discrimination. When you have experienced discrimination yourself, it helps you to understand how it might have happened, and what the impact of it is to fit into the legal tests. It's hardly ever direct discrimination cases I work on nowadays, as most realise that's wrong, but indirect discrimination cases.

"Those who have not experienced discrimination sometimes can't see it. For example my husband also emigrated to New Zealand about the same age as me, but he's not visually different as he is British. I have to explain discrimination to him when he is mystified as to what is going on."

With regard to the sex discrimination case concerning midwives that is currently before the courts, Ms Chen says she is unable to comment other than saying it's not the first case of this sort and it certainly will not be the last.

"In future, we are likely to see more challenges against unlawful discrimination on the basis of a combination of prohibited grounds such as race and gender, for example."

Discrimination is bad for business

The Superdiversity Stocktake includes research that discrimination is bad for business, especially in a superdiverse New Zealand, where almost 50% of the population in Auckland are already Maori, Asian and Pacifika, and where Statistics New Zealand has projected New Zealand's population in 2038 being 51% Maori, Asian and Pacifika, she says.

"Customers will increasingly be diverse and you need to recruit from the market to service that market.

"If there is currently discrimination against those who have the technical skills and competence, but do not have English as a first language or come from a different culture, then these are the very characteristics we should be discriminating for in New Zealand's superdiverse future.

"There is plenty of research showing the diversity dividend of greater productivity and innovation, access to cultural networks and cultural intelligence and language skills. IQ and EQ may not be all that is needed to work with the increasing number of New Zealanders who are not like us and who were not born in this country.

"Currently, 44% of Auckland's population and 25% of New Zealanders overall are not born in New Zealand."

Debbie Ericsson

Debbie Ericsson
Debbie Ericsson

Barrister sole Debbie Ericsson says in her experience as a criminal and family lawyer, a number of her female clients who have been subject to domestic violence have felt let down by the legal system.

"Broken bones and bruises are recognised but it's only recently that psychological and emotional violence has been voiced and arguably it still isn't."

The problem stems from the fact psychological abuse is harder to prove – especially when you have a "he said, she said" situation.

In her view "the law as it stands has no teeth. Under section 3 of the Domestic Violence Act 1995, the definition of domestic violence goes beyond physical violence to include intimidation, harassment, threats, financial and economic abuse etc. All these things have been prescribed in legislation for some time but there are no penalties. Protection orders are seldom granted in these situations because it is so hard to prove.

"The Ministry of Justice's recent measures aim to rectify these issues, which is important as you can mend broken bones but psychological scars may take a lifetime to mend."

Specifically, in August Justice Minister Amy Adams launched a review and discussion document that aims to revitalise the infrastructure around tackling domestic violence.

In 2014, more than 100,000 incidents were reported to Police – around one every five minutes. Nearly half of all homicides and reported violent crimes are family violence-related, for example.

Between 1 July 2014 and 31 March 2015 there were 51,641 family violence referrals made by the Police to Child Youth and Family – a 20% increase on the figures for the same period between 2013 and 2014, which was 42,974. The review aims to look at establishing:

  • a set of standalone family violence offences;
  • creating an additional and alternative pathway for victims, perpetrators and whānau who want help to stop violence other than going to court;
  • overall improved accessibility and effectiveness of protection orders;
  • sharing information more effectively between agencies and the courts;
  • the possibility of requiring mandatory arrests for protection order breaches; and
  • more prominence to victim safety in legislation.

Ms Ericsson also points to Feminist Judgments Project Aotearoa (FJPA), which aims to bring potential gender bias within the justice system to light. With the help of funding from the Law Foundation, FJPA is calling for contributors to write alternative judgments in a number of significant domestic cases across a broad range of legal issues.

The outcome of the project will be an edited collection of judgments, published as a book (or books) by the end of 2017, together with commentaries on each of the cases, and a chapter or two on methodological, conceptual and theoretical issues.

Fiona Mackenzie

Fiona Mackenzie
Fiona Mackenzie

Meanwhile, Tauranga lawyer Fiona Mackenzie, Mackenzie Elvin Barristers and Solicitors founding partner, has dedicated her life to juggling her family, her practice, her family law work and study, and is coming to the end of completing a PhD thesis that explores motherhood and contemporary family law in New Zealand.

"When the time came to consider children, there were no day care centres but at the same time, I never considered the need to give away my practising life through motherhood."

Ms Mackenzie became a sole practitioner and she moved the practice home – that is, one end of the villa where Mackenzie Elvin is situated today. That end was established as a small practice for her, while as an expanding family, they lived in the other.

"Flexibility and being very organised was key, as was a willingness to work hard. They were rich, rewarding years, covering the birth of our four children while maintaining my legal practice with strong, practical and loving support of our extended family.

"I returned to part-time academic study as the children grew older and I found myself wanting to explore further what I saw happening on the ground. We were operating with gender neutral parenting laws with respect to issues which were not gender neutral.

"It's about finding the best combination of mother/father that you can bring to a child's upbringing because they're not the same. I think the reality is that it is difficult to do everything well and your mothering years can be compromised by trying to do everything at the same time.

"I was challenged by my own experience of motherhood, which has been a very good one but one that I knew was unique and was not the same as fatherhood. I absolutely support fatherhood but not to the extent that motherhood is compromised."

Ms Mackenzie fears family law developments have a focus on gender equality, which disregards the merits of particular genders.

"Liberal feminism as opposed to sociological feminism seeks to deny gender difference and nowhere is that more prevalent than motherhood. Current laws around parenting strives not to look at the gender of the parent in determining the welfare of the child.

"I don't agree. I think gender difference should be a consideration when determining welfare assessment. To deny characteristics of gender is to deny difference and the history behind gender – whether that's constructed or biological."

Judith Collins

Judith Collins
Judith Collins

At age 14, former Minister of Justice Judith Collins was at a function in rural Waikato when she told an older gentleman that she wanted to be a lawyer, to which he replied, "no dear, you're a very nice girl so you'll get married and have children".

Despite their $5 wager, Ms Collins graduated with an LLB, LLM (Hons) and MTaxS from Auckland University. She worked as a solicitor for four different firms before becoming principal of her own firm Judith Collins & Associates. She was President of the Auckland District Law Society and Vice-President of the New Zealand Law Society. She served as chairperson of the Casino Control Authority, was a director of Housing New Zealand Limited and has served as a Member of Parliament since 2002.

"Seeing women lawyers on television while a teenager, I noticed they were strong and protected other women. I've always been one to stand up for others and myself so law was a natural fit. A lot of my career I've had people telling me I couldn't do things and I've responded with 'I can and I will'."

Women in the law is not as much a minority as it once was, she says. In 1977 one sixth of Ms Collins' law class were female, for example, now they're at 60%. She recalls being asked whether she had any future plans to have children during job interviews and once the Human Rights Act came into force, the sexist climate dramatically changed.

Unlike politics, law is very enlightened, she says. "In my view lawyers are all trained to a very high standard and if there's a law that prescribes certain rights, lawyers will instinctively want to comply.

"Because the law is so special and wonderful I find lawyers are people who have ideals and are much more idealistic than other professions. It may certainly look like an old boys' club but look at the successes with women on the bench, and Attorney-General Chris Finlayson has been relentless in his efforts to appoint women Queen's Counsel."

Motherhood – 'make it work'

Despite having little interest in parenthood, at 31 Ms Collins' biological clock kicked in, she says.

"I decided to have my own law firm because I had an impression in my mind that I didn't ever want to be made to feel guilty if I wanted to have time off to be with my child or to take my baby to Plunket."

It's not easy combining the law with motherhood, she says, having relied heavily on the support of her family outside of work.

Whenever Ms Collins has been in a position of power she's employed a strategy that promotes mentoring, flexible hours and job sharing options among mothers with young children.

"My view is very influenced by my own experience. Had I not known having children and having a career could work I might not employ it with other people. I know my staff enjoy their working environment and I know they're treated well.

"You need to choose your working environment to be successful. What you consider success may be entirely different from the next person.

"I'm lucky that I have a family that loves me and supports me – during the best of times and particularly during the worst of times. My advice is to be nice to people because they're the ones you're going to see on the way down. I'm a positive little pixie.

"My key to survival – constant improvement. Constantly changing (and hopefully for the better) keeps me interested, excited and makes me thrive."

Who said it was fair?

Ms Collins says ultimately no one said the situation was ever going to be fair.

"An established legal and political career and children wasn't ever going to be easy and it's not for anybody – if it was, any fool could do it.

"You can't be too precious. In the media there are some young fogies who make cruel and sexist assumptions. I'm called a man, strong, bossy and other formidable nasty terms. It's a reflection of their ethics and their practice and you can't let it define you. Very few people take any notice of the media. Life's too short so get on with it and do the best you possibly can.

"Imagine you have a plan for your life and there's a road block. You have three options; you could turn around and quit, which is the easy option and in my view the wrong option. The right option is often the hard option. You could otherwise try and climb over the road block, which is exhausting and mightn't be achievable. Instead the smart option is to go around the block. Rather than banging your head against a wall you could complete a higher qualification part-time, for example, and all of a sudden you find yourself more qualified than the road block. All of a sudden you are more valuable and you have more opportunities.

"I'm pro women and I'm pro equality. The day I don't have to be a feminist is the day everyone is equal. I'm proud to be the mother who is committed to equality and I'm proud to have raised a son who views women as equals."

Ursula Cheer

Ursula Cheer
Ursula Cheer

Canterbury University's newly appointed Dean of Law, Professor Ursula Cheer says the problems faced by women advancing in the legal profession are a mixture of conscious and unconscious bias within what can ultimately be described as a male business model that fundamentally disadvantages women, and to a lesser extent, men.

The model lawyer, who is a "man with a wife at home minding hearth and children" and who is required to be available at all times is a destructive, unhealthy, unsatisfying and unsustainable concept, she says.

Anecdotally, there's a period about 18 months into legal practice when young lawyers leave the field, for example. Irrespective of gender, those law firms losing young lawyers who flee practice lose the benefit of all the investment they have made training those new graduates, which is wasteful and inefficient, she says.

"So why can't law practices look at changing how they do things? Many very successful practices have their own buildings and even those which don't often supply gym membership to employees or make sure there is a gym in the building because they want healthy workers. However, no-one seems prepared to consider making sure child care facilities are nearby or on site, or are subsidised in some way. It's mad really, because firms will continue to lose very able women because of child care issues if things don't change.

"The thing is, the law itself is a fascinating area in which to study and work. It teaches communication, mediation and negotiation skills, how to develop logical thought and argument and the difference between right and wrong. It does, indeed, allow us to help people and contribute to making a better society. It is a genuinely useful profession.

"It is just that the practice of law can be very hard, stressful and also inequitable to women. Women need to keep studying law to make that better and to seek change. I don't want to put women (and men) off studying the law. I want to challenge them to do it differently."

Objectification and sexual harassment is a factor women face in business and in life, she says.

"You can see women are objectified in art, literature, and in everyday speech. Books by men talk about the hero having everything: 'money, fast cars, women, drugs' … and women are just items on a list.

"Women are divided up into types – blondes, brunettes, red-heads etc, like brands to be purchased or pursued. Objectification means women are mostly valued for their appearance and sexual attractiveness. We are divided up into 'lookers' or not, or 'past it' or not.

"Media describe women by their appearance, fecundity and age, but men by their professional position.

"Advertising uses semi-clad women to sell everything. I find it offensive and limiting of both genders, but then I would because, according to my age, I am 'past it'. The cult of male stripping and now some advertising seems to be encouraging our young women to do the same with men, which I think is unfortunate. The aim should not be to do the same thing in reverse but to stop doing it!"

While Professor Cheer was completing her Masters in Law at Cambridge she recalls a time where she was sunbathing in a bikini in her backyard, when a man who lived with his family on the second floor opened his bathroom window and started wolf whistling and catcalling.

"When I politely asked him to mind his own business, he furiously abused me, then went and got his eight-year-old son and forced him to the window so he could claim I was leading his male children astray, and then took the trouble to get some eggs and hurl them at me in the garden below.

"I was forced inside but it did occur to me that it was a dreadful waste of eggs. That man displayed what I could only describe as hatred (and fear) of women."

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