• No results found

Beyond a numbers game: developing a nuanced approach to judicial diversity for Aotearoa New

N/A
N/A
Protected

Academic year: 2023

Share "Beyond a numbers game: developing a nuanced approach to judicial diversity for Aotearoa New "

Copied!
57
0
0

Loading.... (view fulltext now)

Full text

(1)

LLB(Hons) Research Paper

LAWS522 Public Law: Public law norms, institutions, culture

Te Kauhanganui Tātai Ture—Faculty of Law

2021

Hanna Malloch

Beyond a numbers game: developing a nuanced approach to judicial diversity for Aotearoa New

Zealand

(2)

Contents

I A tale of humanity, judging and of New Zealand diversity ... 4

II The judicial role: utmost power and significance ... 8

A Dispelling fairy tales: the inherent humanity of judging ... 10

III 'Numerical aestheticism': traditional account of judicial diversity ... 15

A The case for increased overt diversity ... 18

B A limited approach ... 23

IV Beyond a numbers game: a nuanced approach to judicial diversity ... 27

A Looking behind physical manifestations ... 30

B Suitability to senior court decision-making ... 35

V Nuanced diversity in practice ... 37

A Reconciling diversity and merit ... 40

VI Conclusion ... 45

(3)

Abstract

This paper develops a nuanced approach to judicial diversity, suitable for a future Aotearoa New Zealand judiciary. The traditional account of diversity focuses on increasing numbers of overtly minority judges, for instance, Māori or female judges. Due to the limitations of this approach, this paper broadens the debate by introducing diversity in a judge's tacit influences – for example, professional background, skill and expertise.

The implementation of this approach will result in a breadth of experiences and move New Zealand towards the types of judges needed.

Word length

The text of this paper (excluding abstract, table of contents, footnotes and bibliography) comprises approximately 12864 words.

Subjects and Topics

Judicial Diversity – New Zealand – tacit diversity

(4)

I A tale of humanity, judging and of New Zealand diversity

[O]nce one acknowledges that the law does not exist as a preformed set of rules which judges simply discover and apply to the facts at hand, and that on occasions the judge must form her or his own view as to what should happen, it follows that who the judge is matters.1

Judges matter. Although they do not, like doctors, literally hold lives in their hands, the impact of their work is arguably as great.2 With a significant degree of power and influence, judges change lives and shape New Zealand society.3 As Rackley notes, judging is not a mechanistic process, but vests the judge with incredible discretion. In exercising this discretion, the inherent humanity of the judicial process comes to bear. Judges are not 'superhuman', able to apply the law in an utterly detached and impartial way.4 Instead, as human beings, they cannot but use their own experiences as reference points, giving effect to their broader worldview.5 The identity of those who form the bench shapes the reasoning applied in legal decisions.6 It is therefore a necessary corollary that because judges matter, it matters who our judges are.

New Zealand's judiciary continues to be overwhelmingly comprised of ageing, heterosexual, Pākehā, cisgender men, drawn from the legal and social elite.7 There exists a significant diversity deficit between the demographics of New Zealand's population and the composition of the judiciary.8 Given both the inherent humanity and significant

1 Erika Rackley Women, Judging and the Judiciary: From Difference to Diversity (Routledge-Cavendish, Oxford, 2013) at 132.

2 Kate Malleson "Rethinking the Merit Principle in Judicial Selection" (2006) 33 J Law Soc 126 at 132.

3 Ellen Carroll, Tammi D. Walker and Alyssa Croft "Diversifying the bench: Applying social cognitive theories to enhance judicial diversity" (2020) 15 Soc Personal Psychol Compass 1 at 2.

4 Emma Dellow-Perry "Myths of merit. Judicial Diversity and the image of the superhero judge" (LLM Thesis, Durham University, 2008) at 17.

5 Aharon Barak The Judge in a Democracy (Princeton University Press, New Jersey, 2009) at 105.

6 Ngaire Naffine Law & The Sexes: Explorations in feminist jurisprudence (Allen & Unwin, Sydney, 1990) at 47.

7 Morne Olivier "Some thoughts on judicial diversity in the new Supreme Court era" (2008) 16 Wai L Rev 46 at 50.

8 Brian Opeskin "Dismantling the Diversity Deficit: Towards a more inclusive Australian Judiciary" in Gabrielle Appleby and Andrew Lynch (eds) The Judge, the Judiciary and the Court: Individual, Collegial and Institutional Dynamics in Australia (Cambridge University Press, Cambridge, 2021) 83 at 83.

(5)

influence of judging, this is cause for substantial concern. The legitimacy of the judiciary rests largely upon judges' ability to represent their community.9 The continuing homogeneity reinforces a pervasive view that judges represent an elite class in society.10 This serves to undermine public confidence.11 Further, because judges' life experiences naturally shape how they develop the law, the persistent homogeneity has meant the law has developed without meaningful reference to 'outside' perspectives.12 Given the significant impact the law has on all New Zealanders, is it crucial that it does not serve to simply reinforce the existing stratified social order.13 Increasing judicial diversity is thus imperative to ensure the legitimacy of judicial decisions and of judges themselves. A society so enriched by the diversity it holds must be represented and ruled by those who reflect this.14

The need for judicial diversity has been echoed through all corners of the legal community, reaching those at the highest levels.15 Yet, despite a widespread understanding of the need to increase diversity – and an apparent desire to do so – little has been done to develop a approach suited to New Zealand. Without an explicit articulation of the approach to be taken, the common working definition of diversity has simply been assumed. This traditional approach – labelled in this paper as 'overt diversity' – focuses on securing a judiciary which reflects the overt demographic characteristics of New Zealand's population. This is defined in terms of physical manifestations; for example, gender, age, race, ethnicity and sexual orientation.16 The implicit adoption of this approach has seen New Zealand focus on a strategic evening up of numbers on the bench to ensure a

9 Helen Winkelmann "What right do we have? Securing judicial legitimacy in changing times" (The Dame Silvia Cartwright Address, Auckland, 17 October 2019) at 1.

10 Olivier, above n 7, at 48.

11 Rachel J Cahill-O'Callaghan "Reframing the judicial diversity debate: personal values and tacit diversity"

(2015) 35 LS 1 at 4.

12 Elizabeth Chan "Women trailblazers in the law: the New Zealand women judges oral histories project: part 1" (2014) 45 VUWLR 407 at 415.

13 Naffine, above n 6, at 148.

14 UK Advisory Panel on Judicial Diversity "The Report of the Advisory Panel on Judicial Diversity 2010"

(February 2010) at 15.

15 For example, the highest judge of the land Dame Helen Winkelmann CJ expressed her concern in 2019.

See, Winkelmann, above n 9.

16 KO Meyers "Merit Selection and Diversity on the Bench" (2013) 46 Ind L Rev 43 at 43.

(6)

"numerical aestheticism";17 largely focusing on increasing Māori and women judges. In this sense, the approach thus far can be likened to a 'numbers game'.

It is concerning that this approach has been adopted without regard to whether this is right for New Zealand and what results this will produce. New Zealand must move forward with a clear approach in mind that fits our distinct social and legal context and the type of judges required for this. Approaches matter. In the end, they may take us in different directions, leading to different ideas of judicial diversity and differently constituted judiciaries.18 Although the issues canvassed in the traditional diversity debate have exercised the minds of thoughtful scholars for years, this paper, respectfully, rejects the traditional approach as the full account.19 Instead, the paper contends that a sole emphasis on the traditional approach limits the promotion of judicial diversity. It imposes a restrictive view of humanity, confining judges solely to their overt physical characteristics. In doing so, it fails to appreciate the true value of judicial diversity in the incorporation of diverse perspectives.

Because of its hyper-fixation on overt manifestations, its practical implementation may be fraught with difficulty as it fights for consideration alongside merit.

This paper moves the conversation forward by developing a normative approach suitable for practical implementation in New Zealand. Although the traditional approach remains integral, the paper broadens the debate by introducing a nuanced approach to diversity. A perception of the judiciary as out of touch does not necessarily suggest the solution lies only in making them resemble society, but rather, understand it.20 The story is therefore far broader than the traditional boundaries that prior scholarship has demarcated.21

17 Erika Rackley "What a difference difference makes: gendered harms and judicial diversity" (2008) 15 International Journal of the Legal Profession 37 at 40.

18 Erika Rackley and Charlie Webb "Three Models of Diversity" in Graham Gee and Erika Rackley (eds) Debating Judicial Appointments in an Age of Diversity (Routeledge, Abingdon, 2018) 283 at 298.

19 Opeskin, above n 8, at 85.

20 Dellow-Perry, above n 4, at 101.

21 Drew Noble Lanier and Mark S Hurwitz "Diversity by Other Means: Professional, Educational and Life Diversity of U.S. Appellate Judges" (paper presented to Annual Meeting of the Western Political Science Association, San Diego, 24—26 March 2016) at 1.

(7)

Diversity is a complex and multi-faceted concept, arising in various dimensions. Unlike the traditional approach suggests, not all dimensions are protected characteristics under the Human Rights Act.22 To ensure richness of thought and experience, New Zealand's approach must incorporate a variety of these dimensions. As Lady Hale P, the only appointed female justice of the United Kingdom (UK) Supreme Court, notes:23

You need a variety of dimensions of diversity, I am talking not only about gender and ethnicity but about professional background, areas of expertise and every dimension that adds to the richer collective mix and makes it easier to have genuine debates.

Herein lies the paper's contribution to the field: the development of the nuanced approach which incorporates not only overt diversity but tacit diversity too. Defined as "things that we know but cannot tell",24 tacit diversity includes diversity in professional background, education, skills, values, socio-economic background and religion. In the appointment of such influential people to a prestigious institution it makes no sense to limit the approach solely to diversity in overt characteristics. Instead, it is about the breadth and depth of a person's experiences and what they can bring to the role.25 The diversity New Zealand must aim for is the one which results in a richness of thought and experience, able to contribute to the development of the law.26 This is the nuanced approach.

In developing the nuanced approach, the paper tells a story not only of the impacts of various types of diversity, but of the inherent humanity which exists within the judicial role. Judges are not fairy tale characters but instead human beings. They must be treated as such. No paper on judicial diversity would be complete without background as to why the identity of the particular human behind the wig and robe matters. The paper begins by outlining the judicial role, dispelling any notions of the judge as an utterly impartial, mechanistic applier of the law. Next, it synthesises key pieces of the traditional judicial diversity debate and places them in the New Zealand specific context. It traverses the arguments for and against the traditional account before proposing an approach which looks beyond this 'numbers game'. It explores the implications of this approach and

22 See, Human Rights Act 1993, s 21.

23Judicial Appointments – Constitution Committee "Chapter 3: Diversity" UK Parliament

<https://publications.parliament.uk> per Lady Brenda Hale.

24 Cahill-O'Callaghan, above n 11, at 5.

25 Dellow-Perry, above n 4, at 84.

26 Winkelmann, above n 9, at 6.

(8)

suggests it may be particularly suitable to the senior courts. The paper ends by discussing how one might handle the practical implementation of judicial diversity in New Zealand, finding a way to reconcile diversity with merit.

II The judicial role: utmost power and significance

The need for judicial diversity is crucial as against the background of judges' immense power and influence. Indeed, very few roles provide for such a degree of authority over both citizens and society in general.27 These individuals determine the contours of New Zealand's laws and shape citizen's freedoms and lives.28 Their task is incredibly complex.

Judges simultaneously take on the role of interpreter, fact-finder, policy-maker and decision-maker, exercising considerable discretion while doing so.29 Judges figuratively hold lives in their hands;30 their daily decisions fundamentally affect people's livelihoods, liberties, and reputations.31 In a single day, a judge's decision in a sentencing case could see a person serve the rest of their life in prison; another's decision in an asylum case could result in a person having to leave the safety of New Zealand; while another's decision in a family law case could mean someone loses care of their children. In all situations, there are three individual's lives dramatically altered through a judge's decision. As Matthew Palmer J noted, this responsibility weighs on you.32

Moreover, judges' decisions can impact society generally. As one commentator noted, judges have a hard job. "It's not just putting someone in jail or slapping someone on the wrist and giving them a punishment, but it's protecting society as a whole".33 Judges are social artisans of the highest order whose impact, although often more subtle than their political counterparts, is undeniable.34 Decisions of potential precedential significance can

27 Carroll, Walker and Croft, above n 3, at 2.

28 Maggie Jo Buchanan "Pipelines to Power: Encouraging Professional Diversity on the Federal Appellate Bench" (13 August 2020) Center for American Progress < www.americanprogress.org>.

29 Michael Nava "The servant of all: Humility, humanity and judicial diversity" (2008) 38 Golden Gate U L Rev 175 at 181.

30 Malleson, above n 2, at 132.

31 At 132.

32 Matthew Palmer "Impressions of life and law on the High Court bench" (2018) 49 VUWLR 297 at 305.

33 Rob Demovsky "No nicknames in court: Meet judicial intern (and Packers Pro Bowler) Ha'Sean Clinton- Dix" (24 April 2017) < www.espn.com/>.

34 Allan Hutchinson "Looking for the Good Judge: Merit and Ideology" (2011) All Papers Paper 12 at 2.

(9)

have systemic effects.35 The explanation and application of law in judgments informs and shapes the standards and expectations which apply in society.36 Because judges' decisions are seen as the articulation of the community's conscience,37 they serve as a normalising force in society; defining what is tolerable and permissible. The law informs and reflects society's culture, thus serving as an instrument of change.38

With such considerable power, public confidence in judges is a constitutional imperative.39 In fact, the legitimacy of the judiciary depends on its maintenance.40 Being an unelected body, its legitimacy rests largely on the credibility and confidence that its decisions and processes are fair.41 As Elias CJ stated, "full justification for the exercise of judicial power is necessary to ensure respect for human dignity."42 However, New Zealanders appear fundamentally suspicious of judges.43 For instance, a 2016 Colmar Brunton study revealed relatively low trust and confidence in judges, consistent with previous studies. 48 per cent of respondents indicated they only had "some trust" in judges and the courts, while 17 per cent noted that had "little" or "no" trust.44 A 2019 Ministry of Justice survey echoed these concerning levels.45 Citizens frequently express public dissatisfaction and distrust in our judges. Looking at social media comments on a single article alone displays comments such as "[judges] fail us time and time again" and "our judges are so far removed from the

35 Palmer, above n 32, at 305.

36 Winkelmann, above n 9, at 6.

37 At 6.

38 Melissa L Breger "Making the Invisible Visible: Exploring implicit bias, judicial diversity, and the bench trial" (2019) 53 U Richmond L Rev 1039 at 1053.

39 Jessica Kerr "Finding the New Zealand Judiciary" (2021) NZ L Rev 1 at 2.

40 Sophie Turenne "Fair Reflection of Society in Judicial Systems" in Sophie Turenne (ed) Fair Reflection of Society in Judicial Systems – A Comparative Study (Springer, Switzerland, 2015) 1 at 4.

41 Human Rights Commission Human Rights in New Zealand (2010) at 101.

42 Sian Elias "Justice for one half of the human race? Responding to Mary Wollstonecraft's challenge"

(address to the Canadian Chapter of the International Association of Women Judges' Conference, Vancouver, 10 May 2011).

43 JM Priestly "Chipping away at the judicial arm?" (Harkness Henry Lecture, University of Waikato, Hamilton, October 2009).

44 Victoria University of Wellington Institute for Governance and Policy Studies and Colmar Brunton Who Do We Trust? (March 2016) at 5.

45 Ministry of Justice "Part 1: Victims' trust and confidence in the criminal justice system (CJS) report – Frequently Asked Questions" (2019) <https://www.justice.govt.nz/>.

(10)

real world that we all live in… the whole judicial system is failing its people and needs to be radically changed."46

These figures are concerning given the constitutional necessity of public confidence. They underscore a need to transform the make-up of our judiciary. There is a widespread view that judges represent an elite value system which differs from that of 'ordinary citizens'.

Judges are seen as the preserve of a very limited elite class which disadvantages those disenfranchised from mainstream society, such as minority groups.47 Judicial culture is perceived as one of indifference and superiority. This increases participants' feelings of alienation and disempowerment and reduces confidence that judges can effectively play the role of neutral decision-maker.48 Increasing judicial diversity is thus vital. The public need to feel confident in those who hold such incredible sway over individual's lives and over society. Unless Māori and other minorities feel that the legal system is their legal system, the estrangement of many from the law will continue.49 A society so enriched by the diversity it holds should be represented and ruled by those who reflect this.50

A Dispelling fairy tales: the inherent humanity of judging

Against this incredible authority, it is necessary to remember who lies behind these decisions: individual human beings. Behind the identical wig and robes lies a human face;

just like you and me. In the context of modern New Zealand judging, it is this essential humanity which further gives rise to a need for judicial diversity. Common law judging is no longer understood as a mechanical interpretation of the law.51 Judges are not "robots or traffic cameras, inertly monitoring deviations from a fixed zone of the permissible".52

46 Christine French "The role of the judge in sentencing: From port-soaked reactionary to latte liberal"

(2015) 14 Otago LR 33 at 46.

47 Ministry of Justice, above n 45.

48 Safe and Effective Justice Advisory Group He Waka Roimata Transforming Our Criminal Justice System (Te Uepū Hāpai i te Ora Safe and Effective Justice, June 2019) at 37.

49 Olivier, above n 7, at 48.

50 UK Advisory Panel on Judicial Diversity, above n 14, at 15.

51 Anusha Bradley "90 percent of High Court, Court of Appeal judges Pākehā" (20 September 2021) Radio New Zealand <www.rnz.co.nz>; and Olivier, above n 7, at 48.

52 Eric Liu "Private: The Real Meaning of Balls and Strikes" (2 July 2010) American Constitution Society

<www.acslaw.org/>.

(11)

Instead, judges are tasked with considerable discretion. In exercising this discretion, the nuances of the individual judge come to play. When one realises that judges are using their own viewpoints to make decisions, homogeneity of the bench becomes dangerous. Once the viewpoint of the heterosexual, cisgender, Pākehā male becomes mistaken for neutrality, this narrow viewpoint becomes implemented as the objective norm.53

Recognising the impact of this inherent humanity requires one to dispel the notion of the impartial 'superhuman' judge. Under a traditional interpretation of judging, judges are servants to the law who apply it in a completely impartial manner.54 This impartiality is thought of as "the essential underpinning of western society"55 and made explicit by the judicial oath requiring judges to act "without fear or favour, affection, or ill-will".56 Lady Justice – the law's symbol – is blindfolded to represent her ability to balance the scales of justice and dispense her services with perfect impartiality.57 The notion of the judge as an impartial applier of the law is interchangeable with the image of the 'superhuman' judge;

an enduring myth in law.58 This 'superhuman' judge is the incarnation of wisdom and experience and is utterly impartial.59 The judge brings a detached mind to the task of judgment, setting aside their own perspectives, values and biases.60 Arguments are heard and decided solely on their merits, detached from the identity of those making and hearing them.61 Since justice is blind and the 'superhuman' judge is utterly impartial, the identity of the individual judge behind the wig and robe has no bearing on their undertaking of the judicial role.62

53 Rosemary Hunter "More than just a different face? Judicial diversity and decision-making" (2015) 68 CLP 119 at 124.

54 Lady Brenda Hale "100 Years of Women in the Law" (Girton's Visitor's Anniversary Lecture, Cambridge, 2 May 2019).

55 Lili Barna and others What Makes a Good Judge: Judicial Ethics and Professional Conduct (European Judicial Training Network Thesis Competition, 2017) at 17; and Jasmin Moran "Courting Controversy:

Judges and the Problems Caused by Extrajudicial Speech" (LLM Research Paper, Victoria University of Wellington, 2014) at 6.

56 Oaths and Declarations Act 1957, s 18.

57 Naffine, above n 6, at IX.

58 Dellow-Perry, above n 4, at 17.

59At 18.

60 Jane Nelson "What Makes a Good Judge?" (1989) 9 J Nat'l A Admin L Judges 153 at 154.

61 Turenne, above n 40, at 2.

62 Lady Hale, above n 54.

(12)

This conventional notion places the judge as a fairy tale character, one "superhuman in wisdom, propriety, decorum and humanity, able to apply to law in a neutral and detached way".63 But, as Lord Reid stated, "we do not believe in fairy tales any more".64 As the name suggests, the notion of the 'superhuman' judge is simply a myth. True impartiality in decision-making is, in fact, an aspirational fallacy.65 While judges must aim for impartiality, they remain "inescapably human".66 Like any other mortal, judges do not operate in a vacuum;67 they are a product of their experiences.68 As one United States (US) judge wrote, "Judges are real people with real-world experiences and backgrounds. We cannot expect them to erase their experiences and backgrounds from the mindset that informs their judicial decision-making".69 Because judges are not 'superhuman' but instead mere human beings like the rest of us, they are naturally unable to exert true impartiality.

As much as judges try to see things objectively, they can never see them with any eyes except their own.70 Even though the law may prima facie appear impartial, judges cannot but act on their own caprices.71

Dispelling the notion of the 'superhuman' judge portends that the identity of the judge does, after all, matter. Under a legal realist conception, this innate humanity impacts the judicial task. Given the scope for choice that arises through a broad conferment of discretion,72 subjectification of the process is inevitable.73 Two judges deciding identical cases may come to opposing conclusions.74 Indeed, New Zealand's Supreme Court justices appear only to decide unanimously just over 50 per cent of the time.75 In close call decisions, the

63 Rackley, above n 17, at 41.

64 Dellow-Perry, above n 4, at 9.

65 Chan, above n 12, at 414.

66 Paul Heath "Hard Cases and Bad Law" (2008) 16 Wai L Rev 1 at [8].

67 Barak, above n 5, at 104.

68 Benjamin N Cardozo The Nature of Judicial Process (Yale University Press, New Haven, 1921) at 12.

69 John Marciano "A Conversation With Utah Supreme Court Justice Thomas Lee" (1 December 2014) Attorney at Law Magazine <https://attorneyatlawmagazine.com>.

70 Breger, above n 38, at 1052.

71 Naffine, above n 6, at 40.

72 Ellen France "Discretion, diversity, and other matters of judgment" (Ethel Benjamin Commemorative Address, Dunedin, 19 August 2011).

73 Barak, above n 5, at 105.

74 Petra Butler "The Assignment of Cases to Judges" (2003) 1 NZJPIL 83 at 83.

75 For example, a study of Supreme Court decisions from 2004—2013 revealed unanimous decisions occurred in only 56 per cent of cases. See, Trevor J Shiels "Multiple judgments and the New Zealand Supreme Court" (2015) 14 Otago LR 11 at 23.

(13)

judge as an individual becomes central to the decision. The influence of the individual's discretion will have a significant impact not only on the parties invovled but on society as a whole.76 As Lord Phillips acknowledged:77

If you sit five out of twelve judges on a panel and reach a decision 3:2 it is fairly obvious if you have a different five you might reach a decision 2:3 the other way.

This means that key judgments have been dictated by who happened to be on the bench at the time.78

The reason behind differing conclusions may well be influenced by the identity of the individual judge. As Frankfurter J of the US Supreme Court stated, "a person brings his whole experience, his training, his outlook, his social, intellectual and moral environment with him when he takes a seat on the Supreme Court bench".79 In exercising discretion, judges use their own experiences as reference points, giving effect to the worldview that, in their eyes, seems proper and basic.80 As human beings, even judges who pride themselves on strict neutrality are unable to detach themselves from their own backgrounds, experiences and biases when undertaking "objective" assessments.81 Claims seen in judgments such as 'experience has shown us', 'as far as I am aware' and 'from what I have observed' are statements intended to present some sort of universal truth. In fact, often such claims merely reflect the background, life experience and worldview of the particular judge.82 The objective reasonable person standard does nothing more than perpetuate the viewpoints and biases of judges applying that standard.83 The identity of

76 Rachel Cahill-O'Callaghan "The Influence of Personal Values on Legal Judgments" (PhD Thesis, Cardiff University, 2015) at 329.

77 At 329.

78 Peter Spiller "Realism reflected in the Court of Appeal: the value of the oral tradition" (1998) 3 Yearbook of New Zealand Jurisprudence 31 at 36.

79 Lady Brenda Hale "Appointments to the Supreme Court" (address at conference to mark the tenth anniversary of the Judicial Appointments Commission, University of Birmingham, 6 November 2015).

80 Barak, above n 5, at 105.

81 Carroll, Walker and Croft, above n 3, at 2.

82 Rosemary Hunter and others "Introducing the feminist and mana wahine judgments" in mcdonald and others (eds) Feminist Judgments of Aotearoa New Zealand – Te Rino: A Two-Stranded Rope (Oxford and Portland, Oregon, 2017) 25 at 38.

83 Mai Chen Culturally and Linguistically Diverse Parties in the Courts: A Chinese Case Study (Superdiversity Institute for Law, Policy and Business, November 2019) at 172.

(14)

those who form the bench therefore matters. It shapes the legal reasoning applied in decisions by colouring the reading of the problem before them.84

Revealing the inherent humanity of judging in this sense highlights why judicial diversity matters. Once one realises judges are using their own viewpoints and experiences to make decisions, homogeneity of the bench becomes dangerous. Implicit bias is omnipresent;

research shows that judges harbour the same kind of implicit biases as anybody else.85 Mixing with other 'insiders' who think and experience the same makes it difficult to suppress any unconscious prejudices.86 This is concerning. If these biases are mistaken for neutrality, they may become preserved within the law. The existence of unconscious bias carries a potentially powerful impact in legal proceedings, where the public places its trust in judges to reach a fair result.87 As Winkelmann CJ states, "the effect of unconscious prejudice is particularly acute for judges because of the nature and importance for society of the work we do".88

Rejecting complete impartiality as an unattainable fairy tale does not require us to embrace complete subjectivity. The importance and centrality of judicial objectivity must be maintained, while also consciously appreciating it cannot be fully achieved.89 Yet, the inherent humanity of judging needs to be recognised and celebrated. Each judge is a distinct world unto themselves. They are not faceless automatons in wigs and robes, but personalities with different characteristics, backgrounds, strengths, and attitudes.90 The sin lies not in accepting this humanity, but instead in trying to hide it.91 The judiciary's humanity is one of its greatest assets. Cases reflecting the infinite variability of human beings call for sensitive and acute human understanding.92 Objectivity should not rid a judge of their experiences and values, but instead make use of personal characteristics to

84 Naffine, above n 6, at 47.

85 Breger, above n 38, at 1054.

86 Elias, above n 42.

87 Breger, above n 38, at 1053.

88 Hunter and others, above n 82, at 39.

89 Cahill-O'Callaghan, above n 76, at 20.

90 Spiller, above n 78, at 33.

91 Hutchinson, above n 34, at 1.

92 Spiller, above n 78, at 43.

(15)

reflect the fundamental values of society as faithfully as possible.93 Neutrality is not gained through detachment but through understanding of the concerns of parties.94 Dispelling the notion of judges as 'superhuman' and instead appreciating their inherent humanity opens important space on the bench for judges who are different. Judges, like any of us, are complex and diverse human beings. The make-up of the judicial bench should reflect this.

III 'Numerical aestheticism': traditional account of judicial diversity

The need for judicial diversity becomes clear once one dispels the fairy tale notion of the 'superhuman' judge. Appreciating the judge as a human being allows us to see the influence of the individual on the judicial task. If all judges are of similar identities, this can serve to diminish outside voices and perpetuate biases, alienating those who do not fit within the 'elite' value system. If judges are seen as ruling upon the community without representing it, this can also seek to undermine public confidence in, and legitimacy of, the judiciary as an institution. Given judges' significant authority, it is crucial to have judges able to reflect the diversity of the community.

There has been recognition of this necessity within the New Zealand legal community and broader society thus far. However, little work has been done to develop a normative framework for what this diversity should look like. In its absence, the traditional approach to diversity – labelled in this paper as 'overt' diversity – has been implicitly assumed. Given the approach's traditional dominance and partial implementation, it will always be an important part of our diversity story. In fact, this approach brings exclusive benefits.

However, as this section will reveal, the limitations of this approach mean that it cannot be the sole archetype. A sole reliance actually serves to limit the promotion of true diversity, thus necessitating a broader method.

The traditional notion of judicial diversity has largely focused on overt diversity. That is, diversity in overt characteristics which are easily codified and reflect how the judiciary is

93 Barak, above n 5, at 104.

94 Dellow-Perry, above n 4, at 105.

(16)

seen.95 Proponents of this traditional account would define judicial diversity as being the presence of diverse physical indicators – such as, gender, race, age, and sexuality.96 Arguments for its promotion have centred on the importance of having a bench which physically reflects the population it serves. This emerges from the proposition that there is inherent value in having courts which 'look like New Zealand'.97 The way forward has focused on a strategic evening up of numbers on the bench to ensure a "numerical aestheticism".98 This has largely involved ensuring there is a strategic assortment of women and Māori judges on the bench to reflect a statistical mirror image of society.

Increasing the number of judges with overt diversity is thought to challenge the complacency and normative superiority of the status quo.99 The appearance of a diverse group of judges improves descriptive representation; the idea that as an important public institution which represents the state, the judiciary ought to resemble the people of that state.100 As the approach focuses on increasing the number of judges with diverse overt characteristics, it can be described as somewhat of a 'numbers game'. Under this account, New Zealand's judiciary is currently inadequately diverse. New Zealand is an increasingly diverse society. Compositional population data is as shown in Table 1.

Table 1: Demographics of New Zealand Population101

Demographic Percentage of population (4.9 million)

New Zealanders born overseas 27%

Identify as female 50.8%

Identify as Pākehā 70%

95 Cahill-O'Callaghan, above n 76, at 281.

96 Rachel Cahill-O'Callaghan and Heather Roberts "Hidden depths: diversity, difference and the High Court of Australia" (2021) 17 Int JLC 1 at 3.

97 Opeskin, above n 8, at 91.

98 Rackley, above n 17, at 40.

99 Erika Rackley "Judicial diversity, the woman judge and fairy tale endings" (2007) 27 LS 74 at 87.

100 Anna Dziedzic "Foreign Judges on Pacific Courts: Implications for a Reflective Judiciary" (2017) 5 Federalismi at 9.

101 See, Statistics New Zealand "New Zealand as a village of 100 people: Our population" (23 September 2019) <https://www.stats.govt.nz/>; and Statistics New Zealand "New sexual identity wellbeing data reflects diversity of New Zealanders" (26 June 2019) <https://www.stats.govt.nz/>.

(17)

Identify as Māori 17%

Identify as Asian 15%

Identify as Pasifika 8%

Identify as LGBTQI+ 3.5%

As of September 2021, there are approximately 241 full-time judges across the four levels of New Zealand's judicial hierarchy.102 Although data on the identity of judges is limited, the known demographic breakdown is as shown in Table 2.

Table 2: Demographics of New Zealand Judiciary103

Demographic All Judges

District Court

High Court

Court of Appeal

Supreme Court Identify as

female

40% 41% 41% 20% 50%

Identify as Pākehā

79% 76% 91% 90% 67%

Identify as Māori

15% 18% 4% 10% 17%

Identify as Pasifika

3% 4% 0% 0% 0%

Comparing the compositional data of the New Zealand population and its judiciary reveals a clear diversity deficit under the traditional account. Although the data does not cover all dimensions of overt diversity, anyone with a passing familiarity of the judiciary would recognise it falls short in these regards too. It is encouraging to see that overt diversity is increasing in the District Court, as this may filter through to the senior echelons

102 Bradley, above n 51.

103 Bradley, above n 51.

(18)

overtime.104 However, as it stands, the typical New Zealand judge continues to be a middle- aged, heterosexual, Pākehā, male.105 Although New Zealand's judges are at the coalface of the population's changing demographic make-up, the composition of the judicial branch has failed to keep pace.106

A The case for increased overt diversity

As an important part of any New Zealand approach, it is necessary to outline the significant and wide-ranging implications of an overt diversity deficit. Consequences relate not only to representativeness, but may impact equality, the rule of law, and the quality of judicial decision-making. The first and potentially strongest case for diversity of this kind is that its deficit can lead to decreased public confidence.107 As canvassed earlier, a lack of public confidence in New Zealand's judiciary can be partially attributed to its unrepresentative nature.108 If judges are seen to favour one sector of society over another, the integrity and legitimacy of the judiciary will be compromised.109 Large scale US studies have demonstrated that increased overt diversity can have a powerful symbolic value in increasing this public confidence.110 Thus, its promotion is essential considering the constitutional imperative to maintain confidence and legitimacy.

Secondly, it is not just the perception of unfairness that suffers when overt diversity is lacking, but the actual quality of justice.111 Because these decisions change lives and shape society, it is critical they are of the highest quality. Diversity secures more than a democratic ideal. It can improve the quality of substantive law by improving the judicial

104 Bradley, above n 51. This could be largely due to this being where younger judges are appointed. For example, 75 per cent of judges aged between 45 and 49 in the District Court are not Pākehā, and 40 per c"ent of those aged between 50 and 55 are not Pāhekā.

105 Human Rights Commission, above n 41, at 102.

106 Chen, above n 83, at 7.

107 Cheryl Thomas Judicial Diversity in the United Kingdom and Other Jurisdictions: A Review of Research, Policies and Practices (The Commission for Judicial Appointments, November 2005) at 55.

108 Winkelmann, above n 9, at 9; and Jan-Marie Doogue "Diversity central to public confidence in the court" (December 2018) 924 Lawtalk 78 at 78.

109 Winkelmann, above n 9, at 3; and Human Rights Commission, above n 41, at 102.

110 Thomas, above n 107, at 56.

111 Breger, above n 38, at 1073.

(19)

method and adding richness to its content.112 As judges' life experiences shape their development of the law, the pervasive judicial homogeneity has meant the law has developed without meaningful reference to 'outside' perspectives.113 The law, despite proclaiming itself as coherent and neutral, has played a vital role in reinforcing the existing stratified social order.114

Within the law, one can discern a dominant tendency to endorse a particular worldview which provides a more privileged place for the middle-class, Pākehā, heterosexual man, and another less desirable place for women and other 'outsiders'.115 In its purported neutrality, the law can quietly assist in reproducing conditions which subordinate 'outside' groups.116 Outwardly neutral laws have been interpreted by 'inside' judges in ways which favour the privileged status of their group.117 The supposedly impartial notion of the

"reasonable person" instead presupposes a very particular type of individual; one who resembles that of the decision-maker.118 As the law has been conceived through this specific eye, it represents one specific perspective. This has ensured the 'inside' group remained dominant.119 It is not to say these judges are bent on their own interests. Instead, the law can be traced to an impersonal but nevertheless patriarchal and colonial vision of what represents "the good life".120 Although all judges are motivated by the communal good, even the most conscientious judge will have difficulty imagining the thoughts and feelings of 'outsiders' if they have no experience of what it is like to be in one of those groups.121 Space must instead be created for alternative experiences and understandings from those who do not conform to these traditional assumptions.122

112 Helen Winkelmann “Women as agents of change – Can a diverse judiciary ensure it is independent?”

(Commonwealth Magistrates’ and Judges’ Association conference Kuala Lumpur, 18—21 July 2011).

113 Chan, above n 12, at 415.

114 Naffine, above n 6, at 148.

115 At 148.

116 At 3.

117 Susan Glazebrook "Women Delivering Justice: A Call for Diverse Thinking" (Commission on the Status of Women, 63rd session, New York, 2019).

118 Naffine, above n 6, at ix.

119 At 7.

120 At xxi.

121 Nava, above n 29, at 182.

122 Dellow-Perry, above n 4, at 1.

(20)

The most prominent groups given a subordinate place in New Zealand's law are women and Māori. The Feminist Judgments Project of Aotearoa New Zealand– Te Rino: A Two- Stranded Rope provides a particularly compelling account of the absence of women. The 25 judgments, rewritten as if a feminist judge had sat on the bench, reveal important differences. For example, rewritten judgments include a strong anti-subordination theme, an increased presence of the ethic of care, and changes which allowed women's experiences to become legal truths. A reimagined reasonable person standard which considered female perspectives altered the nature of many cases.123 The project demonstrates the impact of an absence of female judges on substantive law-making and highlights a need to include these different voices.

The absence of Māori judges has also contributed to their subordination under the law.

Since 1840, Māori customary law has received adverse treatment from an almost entirely- Pākehā judiciary. A pervasive line of argument which permeated legal reasoning for decades went as far to deny the existence of Māori customary law.124 Even today, the largely-Pākehā judiciary faces critical difficulties through "being called upon to assess the mores of a society still largely foreign to them".125 The enforcement, interpretation and application of Māori customs by Pākehā decision-makers has left open the possibility of misinterpretation and application of the judges own worldview to the interpretative task.126 There is also the potential this absence has contributed to the over-representation of Māori within the criminal justice system. It is a troubling reality that an overwhelmingly Pākehā judiciary deals with a predominately Māori cohort.127 Although the judiciary must deal with defendants in an impartial manner, it is questionable how the life experience of the typical Pākehā judge enables them to appreciate the circumstances of Māori offenders. This

123 Hunter and others, above n 82, at 40.

124 Most infamously seen in Prendergast CJ's Wi Parata judgment. See, Natalie Rāmarihia Coates "Me mau ngā ringa Māori i ngā rākau a te Pākehā? Should Māori customary law be incorporated into legislation?"

(LLB(Hons) Dissertation, University of Otago, 2009) at 13.

125 Paul Heath "'One law for all" – problems in applying Māori custom law in a unitary state" (2011) 13-14 Yearbook of New Zealand Jurisprudence 194 at 204.

126 Coates, above n 124, at 23.

127 Winkelmann, above n 9, at 5.

(21)

is especially revelant given the limited use of s 27 cultural reports.128 A modern New Zealand judiciary must attempt to understand not just the law, but the societies they serve.

This includes reflecting on and recognising the effects of colonisation on indigenous populations.129 Arguably, this is made easier by the introduction of more Māori judges, hence supporting the promotion of overt diversity.

The incorporation of overt difference on the bench may thus improve the ultimate judicial product.130 The lived experience of women and other minority judges brings a unique perception. It adds an additional lens through which arguments and rationales are filtered to create an accurate image of reality.131 As Lady Hale P opined:132

…the interaction between our own internal sense of being a woman and the outside world’s perception of us as women leads to a different set of everyday and lifetime experiences. The same is true for other visible minorities. It is just as important that these different experiences should play their part in shaping and administering the law as the experiences of a certain class of men have played for centuries. They will not always make a difference but sometimes they will and should.

A diverse bench therefore provides decision-making power to formerly disenfranchised populations and infuses the law with traditionally excluded perspectives.133 As Elias CJ noted, different perspectives cannot but impact substantive outcomes.134 It is not to imply that minorities collectively have a superior approach and offer a better "female version" of the law, for instance. But, more modestly, that as 'outsiders', they are able to observe the non-inclusive nature of a legal system which purports to offer a universal all-embracing service.135 Indeed, recent US studies have shown that cases decided by overtly diverse benches were more likely to debate a wider range of considerations and move the decision

128 Sentencing Act 2002, s 27; and Gregory Burt "What About the Wāhine? Can an alternative sentencing practice reduce the rate that Māori women fill our prisons? An argument for the implementation of indigenous sentencing courts in New Zealand" (2011) 19 Wai L Rev 206 at 213.

129 Glazebrook, above n 117.

130 Rackley, above n 17, at 49.

131 Sian Elias "Changing our World" (address at International Association of Women Judges' Conference, Sydney, 4 May 2006).

132 Lady Brenda Hale "A Minority Opinion?" (the Maccabaen Lecture in Jurisprudence, British Academy, 4 May 2006).

133 Breger, above n 38, at 1072.

134 Elias, above n 131.

135 Naffine, above n 6, at 152.

(22)

in the direction of which the law requires.136 It is this impact on substantial decision-making which furthers the case for increased judicial diversity of this kind.

Diverse courts are essential both to the perception of an equitable justice system and to the rule of law.137 The representative nature of overt diversity may thus also benefit these guiding principles of our legal system. Under the rule of law, the law serves all New Zealanders. Courts do not simply serve a narrow elite.138 All members must feel confident the law is for them and they will receive a fair hearing before the courts.139 This necessitates a judiciary which reflects the society it serves.140 In the democratic New Zealand society in which all members are valued, equality is a necessary requisite for the judiciary's legitimacy.141 The denial of women, Māori and other minorities from the bench can be seen as a denial of equality.142 If judicial appointment is not seen as fair to all sections of society, it is difficult for the courts to visibly embody justice, fairness and equality.143 Because all members must feel the law is their law, increasing overt diversity symbolically demonstrates a commitment to these principles.144

For minority groups, there is further representative value in the visibility of minority judges. As President Barack Obama said surrounding the promotion of minority judges,

"for them to be able to see folks in robes that look like them is going to be important".145 Judicial homogeneity may mean that 'different' judges feel unwelcome, believing that 'they wouldn't want someone like me'.146 Minorities who achieve judicial appointment thus act

136 Thomas, above n 107, at 10.

137 Glazebrook, above n 117.

138 Lady Brenda Hale "It's a man's world: Redressing the balance" (Norfolk Law Lecture 2012, University of East Anglia, Norwich, 16 February 2012).

139 Lady Hale, above n 62.

140 Lady Hale, above n 62.

141 Elias, above n 131.

142 Elias, above n 131.

143 Lady Hale, above n 138.

144 Glazebrook, above n 117.

145 Danyelle Solomon and Michele L Jawando "The Need for a Reflective Judiciary Demands a Return to Normal Order" (15 July 2016) Center for American Progress <www.americanprogress.org>.

146 Dellow-Perry, above n 4, at 21.

(23)

as role models and confirm that they are persons who can hold public authority.147 As Judge Doogue noted, minority judges "can inspire law students and practitioners alike to see judicial office as an achievable goal, and not one exclusive to a particular section of society".148 A lack of overt diversity may deter potential candidates.149 Given legal talent is not confined to a specific identity, there may be very able judges who do not view themselves as judge-worthy but who's talents should be recognised and put to good use.150 Overt diversity can provide inspiration for those who would otherwise limit their horizons and aspirations.151 Equality of opportunity benefits not only the individuals concerned, but all of society. It ensures we don’t waste talents which are available to us.152

The traditional account of diversity provides many compelling reasons for increasing diversity of this kind. A lack of overt diversity has had significant implications not only through endangering public confidence, but on the substantive development of the law. The law's development without meaningful reference to 'outside' groups has resulted in a subordination of women, Māori and other minorities. An absence of overt diversity may also impact the essential notions of the rule of law, equality and fairness. As many of these rationales relate exclusively to the visible representation of overt diversity on the bench, no New Zealand approach to diversity could proceed without it. The significant value that the appearance of judges who look like New Zealand society brings results in a necessary incorporation of this traditional approach moving forward.

B A limited approach

In saying this, there are significant limitations to this traditional notion of diversity. For example, the approach is fatally narrow and could potentially overstate the representative

147 Susan Kiefel and Cheryl Saunders "Concepts of representation in their application to the judiciary in Australia" in Sophie Turenne (ed) Fair Reflection of Society in Judicial Systems – A Comparative Study (Springer, Switzerland, 2015) 41 at 60.

148 Doogue, above n 108, at 79.

149 Cahill-O'Callaghan, above n 11, at 4.

150 Lady Brenda Hale "Judges, Power and Accountability: Constitutional Implications of Judicial Selection"

(Constitutional Law Summer School, Belfast, 11 August 2017).

151 Breger, above n 38, at 1075.

152 Lady Hale, above n 62.

(24)

nature of the judicial role. The focus on overt characteristics alone fails to tell the whole story of judges as complex human beings. These limits mean that a sole reliance on this approach may serve to limit the true promotion of diversity and mean that diversity is incompatible with the type of judges needed for New Zealand. These limits are what necessitate a broadening of approach through incorporating tacit diversity within the paper's nuanced approach. The recognition of these limitations and the development of the nuanced approach does not disregard the importance of explicit overt diversity. As explained, the arguments surrounding legitimacy, public perception and equality likely require an increase in overt diversity to garner these benefits.

Firstly, the approach's narrowness is unfavourable. As established through dispelling the notion of the judge as 'superhuman', judges are complex human beings who bring their entire identity, worldview and experience to the judicial task. The traditional approach fails to recognise the complexity of human beings and instead places judges into watertight compartments; losing sight of the judge as an individual.153 Overt characteristics, such as gender or race, cannot be used as a proxy for the many life experiences that influence a judge's decision-making. Gender or race are but one facet of themselves that minority judges bring.154 The traditional approach therefore simply corrects how the judiciary is perceived, rather than directly challenging the myth of judges as utterly impartial 'superhumans'.155 In treating minorities as homogenous groups, the approach assumes certain overt characteristics affect different judges in the same way.156 It denies the possibility of difference in thought, perpetuating the myth that all judges think alike.157 However, as complex individual beings, judges from minority groups do not necessarily take homogenous approaches to how they interpret and apply the law. A comparison of two lesbian South African judges demonstrates this well. One judge noted that simply being lesbians was not enough to cement the experience of being in common. Although both identified as lesbians, they are separated by ethnic backgrounds, political views and

153 Olivier, above n 7, at 52.

154 Cahill-O'Callaghan, above n 11, at 19.

155 Dellow-Perry, above n 4, at 18.

156 Cahill-O'Callaghan, above n 11, at 29.

157 Dellow-Perry, above n 4, at 29.

(25)

upbringings; resulting in very different approaches to the law.158 Judges are influenced by much more than membership to certain societal groups. Being a minority is not uniformly applicable and enduring, but may be a qualified, partial and fleeting experience.159

Secondly, the traditional account tends to overstate its representative nature.

Representational theory suggests minority judges serve as representatives, working to advance their group's interests.160 However, while increased numerical representation may result in increased statistical representation, it does not necessarily result in sufficient representation for these minority groups. Not all female judges are going to be pro-choice or feminist, in the same way not all Māori judges will necessarily advocate for Māori interests. As a parallel example, one prominent New Zealand politician who has Māori whakapapa is in fact known to advocate against Māori interests, such as through campaigning for the abolishment of Māori seats.161 Although no judge may go this far, it demonstrates that statistical representation does not necessarily mean sufficient representation. Further, even for judges who do wish to advance minority interests, they are confined by the law. As Lady Hale P stated, "our loyalty is to the law and not to our race or gender".162 Although true impartiality is a myth, judges must still apply the judicial oath's requirements for impartiality.163 Thus, to understand judges as representatives is inappropriate and conflicts this core judicial function.164

Thirdly, the traditional common law judicial ideology may supress any representative ability of a minority judge. Under this ideology, a judge's background or beliefs are trumped by a deeply acculturated set of norms and traditions of judicial decision-making which all judges adhere to.165 These norms include deference to the separation of powers, adherence to precedent and upholding the fundamental principles of the common law. 166

158 Leslie Moran "Judicial Diversity and the Challenge of Sexuality" (2006) 28 Syd LR 565 at 575.

159 At 575.

160 Dziedzic, above n 100, at 11.

161 Lachy Paterson "It's about how best to represent Māori interests" (20 August 2018) Otago Daily Times

<www.odt.co.nz>.

162 Dermot Feenan "Women Judges: Gendering judging, justifying diversity" (2008) 35 JL & Soc 490 at 505.

163 France, above n 72.

164 Dziedzic, above n 100, at 8.

165 Hunter, above n 53, at 126.

166 At 126.

(26)

In addition, the ideology may include a resentfulness against difference; a notion that exhibiting difference of any kind is contrary to the judicial role.167 Because the principles and values of the law have been defined by reference to colonial and patriarchal structures, minority judges must therefore conform to this ideal.168 'Different' judges can only be 'let into' the judiciary on the condition of their conformity to the prevailing ethos.169 Any hint of failure to conform may result in their ability being questioned.170 Because these values have been shaped by cisgender, heterosexual Pākehā men, for like men, the minority judge is thus induced to sell their voice; a phenomenon coined "the Little Mermaid syndrome".171 In this silence, difference is lost.172 Because the diverse judge must ascribe to the ideals of the incumbent judiciary, this may undermine any representative value of overt diversity.

Several studies reveal an unwillingness of minority judges to step out of line.173 If judicial authority is seen to be properly vested only in a quintessentially Pākehā, heterosexual male collection of virtues,174 they may feel the need to distance themselves from any notion of difference.175 Therefore, even a minority judge who wishes to take a more robust approach to the issue of difference may find it impossible to insert a different perspective because of the institution's conformity to established legal norms.176

A final limitation is that a sole focus on representativeness may distract from the true benefits of diversity. Representation is not the be all to end all. Some divergences from true judicial representation are positively beneficial.177 Society can be divided in endless ways, referencing an infinite list of overt characteristics. But, for many if not most of these groups, there is simply no legitimate argument for their judicial representation.178 There is no legitimacy to the representation of those born on a Sunday, or those who are a Scorpio.

167 At 126.

168 Dellow-Perry, above n 4, at 2.

169 At 3.

170 Erika Rackley "Representation of the (women) judge: Hercules, the little mermaid, and the vain and naked Emperor" (2018) 22 LS 602 at 620.

171 At 602.

172 At 603.

173 Hunter, above n 53, at 127.

174 Dellow-Perry, above n 4, at 12.

175 Hunter, above n 53, at 127.

176 At 128.

177 Rackley and Webb, above n 18, at 290.

178 At 290.

Figure

Table 1: Demographics of New Zealand Population 101
Table 2: Demographics of New Zealand Judiciary 103

References

Related documents

It is a generic forest growth model that simulates the fluxes of carbon and water, the interception of solar radiation and the dynamics of nutrient cycling through plant and soil

4 code of conduct complaint a complaint that is a code of conduct complaint for the purposes of clauses 4.1 and 4.2 of these procedures complainant a person who makes a code of