Judicial integrity and gender equality – the case for judicial leadership
Judge Nicola Mathers, Auckland District Court Judge, New Zealand
Introduction
[1]Kei aku nui, kei aku rahi, tena koutou katoa. (My greetings to all those who bear authority gathered here.) Sawadee. It is an honour to be with you all today. I have opened my today in New Zealand’s indigenous language, te reo Māori. This is particularly pertinent given my topic today on judicial leadership, equality and integrity.
[2]Many of us here operate in systems with different legislation and cultural contexts. New Zealand is a diverse pacific nation. We have three official languages – English, te reo Māori and New Zealand Sign Language. There are also over 160 languages spoken in New Zealand.
[3]One of the privileges and benefits of being a judge in a smaller country like New Zealand is our ability to change the status quo relatively quickly. Judicial initiative and leadership have changed and continue to change the way individuals access and experience the justice system.
[4]New Zealand boasts some impressive women judges throughout all the courts. Currently half the judges in the New Zealand Supreme Court (including the Chief Justice) are women.[1] Six of 11 heads of bench are women.[2] However, there is still much to be done to ensure the judiciary reflects the community we serve. A 2022 survey reported a 60:40 ratio of men to women judges.[3] It is long recognised that women are generally underrepresented amongst the judiciary.[4] New Zealand also has much work to do to ensure ethnical diversity. Beyond the numbers and statistics, equality and integrity are about judicial mindsets, attitudes and approaches.
[5]A good starting point in discussions about integrity is the judicial oath that every New Zealand Judge takes when we are sworn in:[5]
I, … , swear that I will well and truly serve His Majesty King Charles the Third, His heirs and successors, according to law, in the office of District Court Judge… ; and I will do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will. So help me God.
[6]I emphasise that we swear to do right to “all manner of people”. This means ensuring equal access to justice in the community. This can only be done if we ensure equality of all forms within the judiciary. One aspect of this is encouraging female judges to bring their wealth of life experience, diverse perspectives, and alternate ways of judging to work every day.
[7]I am aware that in some ASEAN countries the oath focusses on allegiance to the monarch and the constitution. These constitutions include equality of rights.
Te Ao Marama
[8]In the time I have with you today, I wanted to highlight a few of the judicial initiatives that I think show recognition of integrity and encourage equality – not only of gender equality but of all forms of diversity.
[9]The Chief District Court Judge of New Zealand, Judge Heemi Taumanu, is leading the Te Ao Mārama initiative.[6] Te Ao Mārama means ‘the world of light’ or moving from the dark to the enlightened world. It stems from a Māori worldview. It is currently in three locations in New Zealand but the aim is for it to roll out to all District Court locations. Unfortunately Māori are overrepresented in the New Zealand judicial system at every step. They make up approximately 17% of the New Zealand population but 54% of the prison population with 53% of men in prison being Māori and 67% of the women in prison.
[10]Te Ao Mārama is a judicially led Kaupapa (vision) which aspires to improve the experience of all who participate in the court system, including victims and whānau (family). It is a response to repeated calls for transformative change to allow all people who come to court to be seen, heard, understood and able to meaningfully participate. Te Ao Mārama intends to be inclusive of all people, regardless of means or abilities, ethnicity or culture, who they are or where they are from.
[11]In practice, this means:[7]
- using plain language in court;
- toning down formalities;
- incorporating tikanga Māori (customary practices or behaviours) or other cultural processes;
- improving the quality of information put before the judges;
- inviting community, iwi (tribe) and whānau (families) into the courtroom; and
- identifying and addressing underlying issues and barriers to participation.
[12]Te Ao Mārama also includes approaches that are unique to each community. Local courts partner with iwi and communities to meet the diverse needs of individual communities. This means adopting the unique tikanga (customary practices or behaviours) of individual marae (meeting houses) and ensuring local customs are respected
Specialist courts and a solution focused approach
[13]Te Ao Mārama also seeks to implement best practices from the existing Specialist Courts. Our Specialist Courts have been initiated and led by judges who see the need for a solution focused form of judging. Judges are in a unique position to see the scope of problems in the community, recognise how we can do things better and implement changes. We are very proud that some of the Courts have been initiated and led by our female judges.
[14]A very widely recognised Specialist Court is Te Whare Whakapiki Wairua | the Alcohol and Other Drug Treatment Court.[8] The pilot was led by Judges Lisa Tremewan and Ema Aitken. They adapted the lessons from international courts, particularly from the United States and the initiative led by the late Judge Peggy Fulton Hora from the Californian Superior Court, into the New Zealand context. Our model recognises the need to incorporate the te reo Māori language and abide by tikanga (customary practices or behaviours) principles.
[15]We also have the Family Violence Court. We know that women make up the majority of victims of domestic and sexual violence in New Zealand as all countries. It is something to be ashamed of that New Zealand has such high rates of family and sexual abuse.[9] Doing right to these women requires a special approach.
[16]Family Violence Courts aim to improve efficiency in the processing of family violence cases whilst ensuring offender accountability and the safety of victims.[10] The model includes bringing together the agencies involved, developing services and support for participants, risk assessment to enable improved triaging of cases, and family violence and sexual violence training. It involves the following measures:
- pre-recording victim statements as soon as possible;
- police officers wearing cameras when attending at a domestic violence call-out; and
- allowing flexibility in the ways evidence is given.[11]
[17]New Zealand has adopted the English model for its sexual violence trials. A liaison judge is appointed to ensure cases are managed efficiently at each stage of the process. There is a dedicated team of court staff working alongside the judge to reduce pre-trial delay, prioritise trial dates, appoint appropriate support services and ensure workable trial arrangements.
[18]The other specialist criminal courts include:
- The Court of Special Circumstances and Te Kooti o Timatanga Hou | the New Beginning Court (addressing the causes of offending and homelessness through a non-adversarial, coordinated, inter-agency approach);[12]
- The Crossover Court List (supporting children and young people who have matters in both criminal and family courts through a non-adversarial, coordinated approach);[13]
- The Rangatahi Court and Matariki: Huarahi ki te oranga tangata | the Matariki Court (Youth Court held on marae developing culturally appropriate rehabilitation programmes for tamariki);[14] and
- Pasifika Courts (Youth Courts held at Pasifika churches and community centres following appropriate cultural processes).[15]
[19]I am aware that judicially-led specialist courts, not necessarily pursuant to legislation, such as I have referred to exist in other ASEAN jurisdictions. The more the better.
[20]A further example of judicial leadership encouraging access to justice is the development and use of communication assistance.[16] Judges are responsible for ensuring parties who come to court can be understood. This means accommodating any communication difficulties, cultural differences, language difficulties and unique vulnerabilities.
[21]Communication assistance was not introduced into New Zealand through a government-led scheme or pilot. Instead, in 2013, judges, lawyers and speech language therapists began using existing legislation to incorporate communication assistants into criminal proceedings.[17] This was outside the scope of interpretation services that the legislation was commonly used for. Communication assistants are speech language therapists who help defendants and witnesses participate and understand criminal proceedings. They are currently being expanded into the Family Court.
[22]Judicial discretion continues in this area because the threshold for who is eligible for communication assistance is based on the circumstances of the particular case and there is relatively little statutory and case law guidance.[18] It is often the judge who raises the issue at the pre-trial hearing.
Lessons moving forward
[23]Equality and integrity are about ensuring doing right to all participants in the system. That is, defendants, victims, whānau (families), and whole communities. This requires judges to treat all people fairly and respectfully. This can be through initiatives like solution focused judging or day-to-day interactions, allowing people to be heard in our courts and treating them with humanity. For example, arranging for an interpreter who witnesses are comfortable talking to about sensitive issues. Women may not be comfortable talking to a male interpreter about a sexual assault, and vice versa or to an interpreter from a different religious sect. Another example would be managing the behaviour of litigants and lawyers in the court room towards women.
[24]Judges must be educated and mentored about unconscious bias. This will mean continuing education through the organisations that train judges. This also means using measures to ensure that work is allocated equally among the judiciary. Female judges should not only be allocated certain types of work. They are capable of deciding all matters within their jurisdiction. This allows equal progression for judges and diverse perspectives on gender related issues.
[25]We must encourage conversation about diverse perspectives in the judiciary and throughout society.[19] The judiciary lead the way. We act as a cross-section of society even if it is not reflected in the numbers. We must be aware of the pressures and impact on females throughout society and within the judiciary. For example, issues of fairness in the work environment, a safe respectful workplace and work-life flexibility.[20] Another example is that research shows decisions and interactions can be impacted if female and minority judges believe that some citizens will see them as biased or unqualified.[21] Mentorship is an important measure to help with these issues.
[26]The examples of Specialist Courts and communication assistance show that judicial leadership must involve collaboration with the community and other professionals. It is important to encourage equality throughout society to give our system the best chance of treating all people rightly and fairly.
[27]The end goal is for each country’s judiciary to progress according to the JIN ASEAN Gender Audit. This includes strategies, policies, training, resourcing and accountability to address gender related integrity issues and achieve gender justice.
[28]No reira tena kotou, tena koutou, tena koutou katoa. (So, greetings to you all.)
[5] Oaths and Declarations Act 1957, s 18. Judges around the world swear different oaths to their countries, constitutions and authorities. However, it is common for constitutions to include equality provisions.
[17] See R v Hetherington [2015] NZCA 248.