What skills, experience and qualities are needed to become a member of New Zealand’s judiciary? What’s it like being a judge? How do the women in our judiciary balance being mothers? At a recent event organised by the Auckland Women Lawyers Association, three women who are long-serving members of the judiciary shared their experiences.
“Joining the Judiciary” featured barrister Anita Killeen in conversation with Court of Appeal Justice Helen Winkelmann, High Court Justice Patricia Courtney and Chief District Court Judge Jan-Marie Doogue. The evening was hosted by DLA Piper. The permission of the participants and AWLA to share some of their insights is greatly appreciated.
Entry requirements
We have 245 permanent judges and over 13,000 lawyers. To become a judge it is necessary to have held a New Zealand practising certificate as a barrister or barrister and solicitor for at least seven years. There are some other requirements and caveats, but the available pool is defined by New Zealand’s lawyers in practice. For appointments to the Supreme Court, Court of Appeal and High Court, the Governor-General is advised by the Attorney-General who, by convention, receives advice from the Chief Justice and the Solicitor-General. For appointments to the District Court, the Governor-General is advised by the Attorney-General after a panel interview. The panel includes the Chief District Court Judge and a representative of the Secretary for Justice.
Although making up over half New Zealand’s lawyers, women comprise just one-third of the judiciary. There is little information on the ethnicity of judges, but the 2013 census showed 93% of judges stating they were of European ethnicity and 11% of Māori ethnicity. Chief Judge Doogue was just the 17th woman appointed to the judiciary while Justices Winkelmann and Courtney were among the first women appointed to the High Court. Their experiences and observations showed many of the changes that are happening on the road to a more diverse judiciary and legal profession.
The participating judges
As part of her introduction, Anita Killeen gave information on the number of children each of the judges had and their ages when their mother was appointed to the bench.
Justice Winkelmann was appointed to the High Court 14 years ago in 2004, 19 years after her admission as a barrister and solicitor. When appointed she had children aged 15, 12 and two five-year-old twins. On 1 February 2010 she was appointed Chief High Court Judge, and she joined the Court of Appeal from 1 June 2015.
Justice Courtney was appointed to the High Court 14 years ago in 2004. This was 21 years after her admission. When appointed she had children aged 7 and 2. Justice Courtney has the second-longest tenure on the High Court bench after the Chief High Court Judge, Justice Venning.
Chief Judge Doogue was appointed to the District Court bench 24 years ago in 1994. She had been admitted as a barrister and solicitor 14 years before. On her appointment she had twin daughters who were aged three. Initially appointed to the Family Court, Chief Judge Doogue’s tenure was extended to the criminal jurisdiction with a jury warrant in 2007. She was appointed Chief District Court Judge in September 2011.
What are the skills required to join the judiciary?
Chief Judge Doogue: The District Court is a very very busy court. It is a very highly transactional environment, so you have to be extremely nimble. As we have developed in our appointment process and our interviews we now have a tangata whenua Judge on the appointment panel to ensure that you have reasonable understanding of tikanga, and also we require that you have accurate pronunciation of Te Reo. It goes without saying that there is great over-representation in the family and criminal jurisdiction of Māori and Pasifika and depressingly other immigrant groups and so we see that as being an absolute requirement that we are not only representative of our community but that we are sympathetic to our community.
A final quality, which has been identified internationally as a requirement for good judging, is an empathetic personality and a humble personality. In the District Court you are dealing largely with impoverished disadvantaged individuals and you need to be able to respect and emphasise with that sector in the community.
Justice Winkelmann: Intellect is a given. You have to earn respect and standing in society not through your intellect but through your behaviour as a judge. And you do that through demonstrating humility. I think humility is incredibly important because we wield a great deal of power and it’s easy to lose sight of the impact of that power. You have to have a service mentality because this is not an easy job. As our Chief Justice says, it’s not a prize, it’s something you need to want to do because you want to contribute to your society, not to your own self-importance.
Integrity is an absolute given. You must maintain your reputation within the profession for always dealing in an honest manner with other professionals. I think that we look for people who have been brave and strong in the profession – you don’t really suit yourself for appointment to the courts unless you show that you do have courage and in your representation of your clients in the work you do you are brave enough to stand up in the court and advance your client’s cause. Sometimes even in the face of maybe a weak cause, you may be facing judicial disapproval for the arguments you are making. You may be facing a counsel who is many years more experienced, who’s really wiping the floor with you. But you actually have to be a person who is brave enough to do that and then go back in court the next day and do it again and do it better. You have to be brave enough and also have imagination enough to see the arguments that need to be made that can advance your client’s cause.
What the Chief Judge said about empathy is so important. You have to be a decent human being and you have to be empathetic and interested in the lives of others. In our increasingly diverse society you have to be really interested in your society to keep across what the issues are, to stay as connected as you can to do it because we need more diversity in our judiciary. We can’t get enough different kinds of people. You don’t need just diversity. We sit here as women but we have to bring far more to the bench than the particular path you have walked in life. We have to bring our understanding of others. I always say to people who want to be judges, start reading more literature because books give you an opportunity to see a thousand lives and also pay attention to what is happening in our society. Don’t sit in your comfortable office, get out and meet people. Try and do different kinds of work, not just work at the top end of town. Sure you might be a top end of the town lawyer but most law firms will support you doing a mixture of work as well because when you do that extra work you actually become better lawyers, because if you become a judge you’re not just going to work in one small area, you’re going to have to have an understanding of the principles that run through the law, through the different areas.
Justice Courtney: In the High Court you need to be able to absorb a lot of written information and to write well because this is our daily grind; we produce a lot of written work and it has to be good quality work.
Attributes I think are important as well as those which have been mentioned are patience, restraint, intellectual curiosity about the law and about people. Most High Court judges come from a relatively narrow background. You come from a commercial litigation background and yet you arrive and you are suddenly doing everything, you’re sitting on Family Court appeals and tax and a lot of crime and you need to be genuinely interested and curious about how the legal system works and about how the law works and how it should be developing; how it can develop. You really need to have the desire and the patience to unpick the problem and find the legal answer that reflects all the myriad factors that go into that, and they’re not just legal factors. And you’ve got to be prepared to work incredibly hard. The truth is this is a tremendous job that never really ends; it’s true that in the law the reward for hard work is more hard work.
Aside from formally applying, how do you get known and identified as a potential judge in the future, especially if you’re not in court often or not in court at all?
Justice Courtney: If you are not in court very often, it’s pretty hard to get known by the judges. That’s just the reality of it. The best thing you can do is do the work you enjoy, do the best you can at it and shine in the area that you find yourself interested in, and eventually you will get known. I don’t think the Attorney-General and Chief Justice take such a narrow view these days that they are only looking at litigators.
Justice Winkelmann: If you’re a judge you’re a leader and it’s about fitting yourself for a leadership role. And how you do that is not about money or you building yourself a fabulous CV. It has to be about doing a fantastic job for your clients, but also committing to the profession, giving service to the profession by committing to doing work, CLE, supporting the various pro bono initiatives that are going on, supporting your fellow professionals through organisations. I also think you need to show a true interest in the law by going to seminars to understand the context of the area in which you work. Those are the kind of things that you do to fit yourself for the role.
But I come back to the thing that I said at the beginning, which is the most important thing that you can do is show that you are a brave and committed professional who will do the right thing in difficult circumstances. A lawyer who will stand up and make the hard argument in difficult circumstances. Or who, if a commercial lawyer, will say no to a client who wants to bend or break the law – even though it means perhaps losing a client.
Chief Judge Doogue: If you want to be a judge you have to have aspiration. I’ve just done a survey of all the women judges on my bench which asked how they got to be judges. 46% said they had never received any strategic support along the way. They had all experienced obstacles of discrimination, gender, culture and they said that the most significant barrier was that they didn’t want to put themselves above the parapet. I quite like that because that probably means that they’re very humble, but men do put themselves above the parapet. And 39% said the greatest issue or impediment was the lack of information on what the role of the judge is. If you don’t know what the role of the judge is, that’s going to impede you from applying for appointment
If you don’t regularly appear in District or Family Court I would suggest you just go and observe. And, with permission you can observe in the Family Court and of course you can come as of right in the District Court. Just come and have a look at it and observe what judges are doing. Approach judges and ask them personally what you should be doing if you wish to be considered.
Justice Courtney: I was incredibly lucky that I had some fantastic mentors and partners to encourage me. They went out of their way to take me as junior, to say you can lead that case. I would not be where I am if it was not for their encouragement and support. If I could pinpoint one thing for me, it was the role of the mentor. If you have someone ahead of you in the profession who is prepared to put themselves out, encourage you and encourage clients to trust you and engage you, to put you into court instead of them; that is priceless. It’s good to have aspirations, you’ve got to be careful not to plan too much – the most critical thing is to make the most of the professional career that you have in front of you, make the most of the opportunities that come along – they won’t necessarily be the ones that you were expecting and they may not be the ones you were looking for, but if an opportunity presents itself, take it and do the best you can with it.
What has your experience been at joining the judiciary at a relatively young age while having a young family? What are the challenges and how have you found juggling them?
Chief Judge Doogue: It was in my personal life that I had the greater challenges because when you come to work you can get into professional mode and to a certain extent control your day. I was able to cope with having children at school to the extent that we got a 12-month diary of their significant events. As a District Court Judge you have to plan your life 5 months in advance. I was always able to say I will be at a school camp or at sport on a Saturday, and of course you’re able to take your holidays at the same time as the school holidays. All that is manageable, but you layer on top of that the extracurricular activities that your children have, and there are the things that just pop up. Your life is highly controlled.
Justice Winkelmann: Because you become organised and you are very focused with being a good judge and a good mum you do get there, but it is at considerable personal cost. There’s not a lot of lazing around time, you have to have high energy. It’s not an easy thing to do and you have to believe that you are doing something that’s important. It’s not about you having a fantastic and glamorous life, it really is about doing quite serious public service, but I believe you can manage it, and you’ve got three women up here who are showing you can do it.
Justice Courtney: Long-term you can do it and the kids are amazingly supportive when they see you doing something that is worthwhile. It does require sacrifice, it requires incredible organisation and you have to be prepared to be tired a lot of the time. When we three became judges a lot of the judges around us all had an incredibly different life organisation – they were men with grandchildren the same ages as my children. We could talk about kids at morning tea, but they were a different generation.
The judiciary is changing now – there is a greater mix of parenting, family relationships and circumstances. I think that will increase and I think the job will shift a little bit to meet these changes. We need to make the jobs fit the people who will be coming into them.
Access to justice
Justice Winkelmann: To me, the big issue facing our judiciary and our profession is how we can enable people who have really pressing legal issues and needs to bring them to the court and to have them legally represented, or represented adequately if the legal profession won’t step up, so that the huge unmet legal need is addressed.
The profession is pricing itself out of most of the legal market. We know that most of the legal market is not being served by the legal profession at this point in time. We know that there are not enough civil legal aid lawyers providing civil legal aid; that’s a really significant issue. There are areas that have pretty significant legal need and there are just no lawyers working in those areas – like accident compensation, social welfare and housing. There are issues around the legal profession, there are issues around costs, court fees, there are issues about our procedures, and what we can do to make matters move more quickly through our courts, and perhaps we need to look at more flexibility at the lower end. We have the Disputes Tribunal, but perhaps we need to look at other models at the lower end. I think it’s an issue in which the profession has such a vital interest and should be engaging.
Chief Judge Doogue: One of the emerging dynamics which is an access to justice issue is the number of people appearing before courts with mental health issues. There is an emerging need for judges to use the communications assistance provisions of the Evidence Act because of the problems. In the District Court we are having to change the skill sets and responses of the judges with respect to the social justice issues.
What are the time pressures of being a judge – Can you be a judge and also have a life?
Justice Courtney: This is a job that really soaks up as much time, energy and thought as you can give it. You have to come to this job knowing it is something that is bigger than you and it will always take whatever you can give it. There is not a lot of time for sports and hobbies. It’s an incredibly worthwhile job but don’t have any illusions about it.
Justice Winkelmann: There are some things I just can’t live without, so the job just has to make way for them: a huge Sunday night dinner at our house, which is a riot; I can’t live without being able to read a couple of hours a day – at night. And exercise, which I need to do in a group situation to stop my mind going back to my last judgment. I do all these different things.
There can be huge pressure on you. It’s not a job you take on because it’s glamorous or you believe you’ll get status; it’s a job you take on because you believe in the importance of the work we do. We have a public service mindset, but it is an incredibly incredibly fulfilling job.
Chief Judge Doogue: The District Court is absolutely relentless so I wouldn’t have any rosy-hued glasses about being a District Court Judge. It is so much harder in the District Court than it ever was when I arrived [24 years ago]. You had some breathing time and thinking time, now it’s just do, do, do. As Chief Judge I’ve brought in as many measures as I can to try and stem that flow, but Judges are generally very good people and they can take on more than they reasonably should sometimes as a response to the pressures.
We do have reasonable amounts of leave and sabbatical, but the judges need it to refresh and stay sane. It’s relentless, it’s unglamorous but an incredibly fulfilling profession.