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Judicature Modernisation Bill - Submission to the Justice and Electoral Committee [2013] NZHRCSub 2 (21 February 2013)

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JUDICATURE MODERNISATION BILL

Human Rights Commission Submission to the Justice and Electoral Committee

21 February 2013

1. Introduction

1.1 The New Zealand Human Rights Commission (‘the Commission’) welcomes the opportunity to make a submission on the Judicature Modernisation Bill. We have limited our comments to those issues which bear directly on our work.

1.2 The Commission’s submission addresses the following points:

(i) Consultation and transparency in appointment of judges

(ii) Diversity among the judiciary

(iii) Disability

(iv) Part time judges

(v) Increased damages

(vi) Inherent jurisdiction of the High Court

2. Consultation and Transparency in appointment of judges

2.1 The Commission considers that confidence in the judicial system is closely linked to the way in which the judiciary is appointed. Although the Bill makes some improvements to the judicial appointment system^[1], the Commission considers that the process could be more transparent and the criteria included in the legislation itself.

2.2 The consultation process could also be further improved. While the Commission recognises that the Attorney-General can consult with “any other person they consider appropriate” consultation is principally anticipated as being with the profession. The fact that the people who are consulted are a relatively limited group means that it is unlikely to lead to any significant change in the makeup of the judiciary. In our view the legislation should specifically require consultation with representatives of civil society such as groups dedicated to judicial reform.

2.3 While the Commission considers it is appropriate for the Attorney-General to advise the Executive on the appointment of judges, prior consultation should be mandatory and not primarily limited to the legal profession. The criteria for appointment should also be included in the legislation.

3. Diversity

3.1 Diversity in this context is typically understood as increasing the representation of groups who are under-represented on the bench. The principal focus is on how to break down the formal and procedural barriers that prevent groups who are under-represented from reaching the bench, the assumption being that once the barriers are removed and members of those groups are invited to join the bench, the number of judges from non-traditional backgrounds will increase.

3.2 A more holistic approach to judicial diversity could ensure a wider variety of backgrounds, perspectives and experiences was introduced which would inform, and lead to, better judgment. The underlying assumption is that the judiciary is stronger and that justice is better dispensed, the more varied the perspectives and experiences that are involved in the decision making. As Dr Erika Rackley of Durham Law School has observed^[2]:

Instead of being concerned simply with ensuring the presence of a wider variety of backgrounds or attributes on the bench, this broader conception of diversity seeks to ensure that these diverse characteristics and experiences are actually tapped into, that they lead to diversity in judging.

3.3 While personal beliefs or sympathies cannot deflect a judge from doing what is right according to law in a particular case, how they go about “judging” is critical.

3.4 Research suggests that there is likely to be greater public confidence in the administration of justice where there is a more diverse judiciary, particularly where ethnic minorities are concerned^[3]. It is axiomatic that the judiciary should reflect the public whom it serves and who are affected by its decisions. A diverse judiciary is, therefore, not simply desirable for policy reasons but increasingly vital for the judiciary’s legitimacy in a diverse society^[4].

3.5 In this regard we think it worth pointing out that the Commission has received a number of representations from members of the legal profession about the absence of ethnic diversity in the judiciary in areas such as South Auckland. We feel this is a significant oversight and a matter of some concern.

3.6 Every three years the Commission publishes the New Zealand Census of Women’s Participation. This allows the benchmarking of women’s progress in specific areas over the relevant period. In 2010 the census reported that since 2008 the number of women on the bench had increased by only 0.27% to 26.03%. In March 2012 the New Zealand Law Society indicated that overall the judiciary comprised 152 males (73%) and 57 females (27%) compared to a gender split of eligibility for appointment of 61% male, 39% female^[5].

3.7 The 2010 Census also quotes Barrister Jane Glover on gender equality. She observes that “In New Zealand, 74% of our judges are men. Yet it seems unlikely that 74% of our best legal minds in this country belong to men. With all due respect to its current members, therefore, our judiciary is not as good as it could be under a true meritocracy.” She then goes on to suggest the establishment of a Judicial Appointments Commission (JAC) similar to that in countries such as the United Kingdom, Scotland, France and Canada, might redress this situation.

3.8 The establishment of a JAC is not thought to be feasible in New Zealand because the resources required to establish it would be disproportionate to the number of appointments^[6]. While the Commission recognises that the cost of creating a JAC similar to that in the UK could be prohibitive this should not rule out establishing a similar model on a smaller scale in New Zealand^[7].

3.9 If some type of judicial appointment panel is not considered appropriate, then the implementation of the appointment process would be improved by better use of the concept of Equal Employment Opportunities – where two candidates are equal the one with the desired characteristic may be chosen ahead of the other. This is the case now in the United Kingdom where the recently enacted Crime and Courts Act 2013 specifically includes an “equal merit provision” which clarifies that where two persons are of equal merit, a candidate can be selected on the basis of improving diversity^[8].

3.10 The Commission considers that principles that could influence selection of suitable candidates should be set out in legislation. Although the current criteria^[9] recognise the link between the judiciary and diversity by a reference to “reflection of society”, the requirement is too general to adequately address issues of gender and ethnicity and it has not delivered diversity on the bench to date.

4. Disability

4.1 Although not often raised in this context, genuine representation includes people with disabilities. For too long, people with disabilities have been marginalised in many areas including the administration of justice generally.

4.2 The Commission considers that the question of representation of people with disabilities on the bench warrants special consideration as a result of New Zealand’s ratification of the UN Convention on the Rights of Persons with Disabilities (the Convention)^[10]. The Convention is unique in that it does not introduce new rights but rather seeks to ensure access to rights that everyone else takes for granted. It does this by promoting a social model of disability based on the premise that the difficulties many people with disabilities face are more often the result of a disabling environment rather than inherent in the disability itself.

4.3 For many years it was assumed that while a disabled person may be mentally capable, they might not be able to meet the physical demands of doing a job. While this attitude has changed to some extent over recent years – for example in the US as a result of Tennessee v Lane^[11], the State of Tennessee promulgated rules prohibiting discrimination against qualified persons with disabilities in accessing or participating in judicial programmes, and in the UK many obstacles have been largely resolved by the enactment of the Equality Act 2010 – some disabled lawyers have indicated that they still face difficulties in accessing jobs that could lead to the bench, and that the problems lie with the profession itself as much as with the method of selection^[12].

4.4 Article 27(1)(e) of the Convention relates to work and employment and requires States Parties to “promote employment opportunities and career advancement for persons with disabilities in the labour market as well as assistance in finding ... employment” while Article 13(2) states “in order to help ensure effective access to justice for persons with disabilities, states parties shall promote appropriate training for those working in the field of the administration of justice ...” This suggests both that there should be a positive attempt to promote the opportunities of disabled people to serve as judges and an obligation on the judiciary to undergo appropriate training.

4.5 The Commission therefore recommends that positive action is taken to recruit suitable applicants who are disabled to the judiciary. By this we do not mean affirmative action but rather the introduction of a spectrum of activities which could encourage under-represented candidates to apply, including the type of outreach programme introduced in the United Kingdom, mentoring programmes and the introduction of targets particularly at the application stage of the appointments process. Together with appropriate training, this might go some way to redressing the issue.

5. Part time judges

5.1 At present judges of the District Court and the High Court can act on a part time basis for 5 years provided they resume working full time at the end of that period. There is no comparable provision applying to the Court of Appeal or the Supreme Court. The Bill would allow judges of the Court of Appeal to also act on a part-time basis.

5.2 The Commission is very supportive of this change since it will make higher judicial office more family friendly and attractive to women. While family responsibilities are arguably not the sole reason for the absence of women from the judiciary^[13], it must contribute to it in part. Allowing part-time judges at the Court of Appeal will clearly go some way to encouraging more applications from women (and men with family responsibilities).

6. Increased Damages

6.1 Under s.92I(c) the Human Rights Review Tribunal has the discretion to award damages where it finds a breach of the Human Rights Act 1993. The level of damages that the Tribunal can award was increased in the 1993 Amendment to the same level as the District Court but the awards have been criticised as comparatively low and inconsistent with courts such as the Employment Court. In the event that damages exceed the permitted amount, the Tribunal must refer the grant of the remedy to the High Court: s.92R

6.2 As a result of schedule 6 of the Bill, cl.256 will increase the amount that can be claimed as damages to $356,000. The Commission welcomes this as recent indications are that the level of damages awarded by the Tribunal is increasing.

7. Inherent Jurisdiction of the High Court

7.1 Finally the Commission is pleased to note that the outdated wording in the parens patriae jurisdiction of the Judicature Act which allowed the High Court control over “the persons and estates of mentally disordered persons and persons of unsound mind” has been amended.

7.2 The Commission welcomes the new wording in clause 13 which is more consistent with the UN Convention on the Rights of Persons with Disabilities noting also that the emphasis in the Convention is on supported (as opposed to substituted) decision making.

8. Conclusion

8.1 The Commission supports the consolidation of the existing legislation in a clear, modern and coherent statute. It is long overdue.

8.2 The increase in the level of damages that can be awarded by the District Court – and corresponding increase in those that may be awarded by the Human Rights Review Tribunal – is particularly welcome. We are also pleased to see that the wording relating to the application of the parens patriae jurisdiction of the High Court has been amended.

8.3 While we recognise that extending the possibility of working part time to Judges of the Court of Appeal will enhance the prospect of increased diversity among the judiciary, we feel that more could be done in this regard and recommend that an equal merit provision similar to that recently introduced in the UK would increase judicial diversity.

8.4 In the interests of transparency and accountability, the Commission also recommends that the criteria for judicial appointments should be in the legislation and that there should be mandatory consultation with a wider variety of stakeholders when appointments are considered.

Contact person:
Sylvia Bell, Principal Legal & Policy Analyst, Human Rights Commission
Direct dial: 09 306 2650

Email: sylviab@hrc.co.nz

^[1] Presently the process for appointment to the District Court bench can be found in a booklet produced by the Chief District Court Judge and the Attorney-General publishes a protocol relating to appointment to the higher courts. The Commission notes that this will not change under the Bill.
^[2] Women, Judging and the Judiciary: From Difference to Diversity (Routledge: 2010)
^[3] Cheryl Thomas, Judicial Diversity in the United Kingdom and Other Jurisdictions: A Review of Research Policies and Practices. Commission for Judicial Appointments, London (2005) See also Malleson, K. The New Judiciary: the Effects of Expansion & Activism 3-5 (1999) cited in Maute, J. English Reforms to Judicial Selection: Comparative Lessons for American States? Fordham Urb. L.J. Vol. XXXIV [2007]
^[4] Ibid.
^[5] LAWTALK 792 (30 March 2012): “A snapshot of the New Zealand Legal Profession” pp.10-19 ); see also Malleson, K ‘The presence of women in the British judiciary’ (2013)
^[6] Law Commission
^[7] We note, too, that Sir Geoffrey Palmer recommended the establishment of a new Judicial Appointment and Liaison Unit which would have consolidated the process of application and interview for all judicial offices, up to and including the Court of Appeal, in 2002.
^[8] Schedule 13 Part 2 Crimes and Courts Act 2013 amends s.63 of the Constitutional Reform Act by inserting: (4) Neither “solely” in subsection (2), nor Part 5 of the Equality Act 2010 (public appointments etc.) prevents the selecting body, where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity within-

(a) the group of [persons who hold office for which there is selection under this Part , or

(b) a sub-group of that group.
^[9] They include legal ability; qualities of character; personal technical skills; reflection of society. “Reflection of society” is defined as awareness of and sensitivity to, the diversity of modern New Zealand society. The importance that the judiciary comprise those with experience of the community of which the court is part and the ability to demonstrate social awareness is also important: Ministry of Justice (2012)
^[10] In 2008
^[11] 124 S.Ct.1978 (2004)
^[12] For example, In the Matter of Horan [2010] EqLR 463 and see also Horan, J. Judicial Attitudes towards Disability EOR 216 [26/8/201]
^[13] Justice Susan Glazebrook Looking Through the Glass: Gender Inequality at the Senior Levels of New Zealand’s Legal Profession Speech to annual “Chapman Tripp Women in the Law” event, VULS (2010)