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Research shows significant disparity in higher court appearances

05 October 2018

Female lawyers are greatly under-represented in appearances before the Court of Appeal and Supreme Court, according to research carried out by the New Zealand Bar Association with funding from the New Zealand Law Foundation.

In spite of there being an equal number of female and male lawyers practising in New Zealand, the research, covering a six-year period, showed women barristers or solicitors made up about 25% of lead counsel appearances before both the Court of Appeal and Supreme Court. The overall figure drops to around 15% female representation when the Crown Law Office is excluded from the data.

The research is the first reliable and comprehensive data showing the gender ratio of counsel appearing before New Zealand’s two highest courts. Data was drawn from judgments issued between 2012 and 2017. Each year there were around 400 cases involving an oral hearing in the Court of Appeal and around 100 delivered judgments in the Supreme Court.

“The proportion of women appearing as lead counsel in the Court of Appeal has seen no discernible trend of improvement in the six years for which data has been collected. This is true across civil and criminal cases and where Crown Law is excluded,” the report says.

The report’s co-authors, New Zealand Bar Association Council members Jenny Cooper QC and Gretta Schumacher, say although they expected to find disparity, the results were worse than they had anticipated.

“The most shocking aspect is the absence of any material improvement over the six years that the study covers,” says Jenny Cooper. “This demonstrates the fallacy of the argument that it is just a matter of time and gender inequality will take care of itself. Active measures are needed to overcome entrenched attitudes that deprive women of opportunities to prove themselves as advocates.”

The data on Queen’s Counsel shows that only around 9% (10.3% for Court of Appeal and 8.27% for Supreme Court) of appearances by QCs are by women. Overall, of 119 QCs in practice, 23 (19.3%) are women.

The research authors say the role of the Crown Law Office in providing a greater level of gender equity in counsel appearing on its behalf (as compared to the overall legal profession), is notable and warrants further understanding. Crown Law adopted the New Zealand Bar Association’s Gender Equitable Briefing Policy in 2009, and adopted the joint New Zealand Bar Association and New Zealand Law Society Gender Equitable Engagement and Instruction Policy on its launch in 2017.

Junior counsel

Junior counsel figures show a higher level of representation of women. The average proportion of female junior counsel over the entire period is 46.7% in the Court of Appeal and 38.6% in the Supreme Court. The proportions are similar across both criminal and civil cases, and where Crown Law is excluded from the figures.

“Even though appearance as a junior is the most favourable category for women in New Zealand’s Court of Appeal and Supreme Court, the report authors considered that the configuration of male and female seniors and juniors was also important to consider,” the authors say.

“For example, as is demonstrated in the data breakdown, men still appear as juniors to male QCs more frequently than women do, across every year. Conversely, there are very few women who junior for women, and even fewer women who are lead counsel to junior men.”

Women as proportion of lead counsel in Court of Appeal, 2012 to 2017

graph showing gender disparity

Women as proportion of lead counsel in Supreme Court, 2012 to 2017

graph showing gender disparity

Call to action

New Zealand Law Society President Kathryn Beck says the research results are a call to action.

“The message is very clear. Over the last six years there has been little change in what is an unacceptable low proportion of women appearing as counsel in the Court of Appeal and Supreme Court. With women now making up over half the legal profession, the fact that they made up just 25% of lead counsel appearances there must be addressed,” she says.

“The legal profession now needs to take proactive action to ensure advancement in the proportion of women appearing in lead roles in our courts. We have the framework in place with the joint NZBA/New Zealand Law Society Gender Equitable Engagement and Instruction Policy. This sets a starting point, but our overall objective must be equality.

“The Court of Appeal made a good start on 1 March when Justice Stephen Kós announced its resolution to encourage greater participation of junior counsel in advocacy before it. Initiatives like this will help open the door to more appearances by women.

“However, more work is needed to address the disparity and close the gap so that women have an equal opportunity to appear. Law firms, corporate clients and corporate counsel can all play a part. As with all things in this area, it is down to each individual taking personal responsibility for change.”

Last updated on the 5th October 2018