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1 OUR SYSTEM OF CONSTITUTIONAL GOVERNMENT depends upon law
and its observance. This is sometimes called “the rule of law”. Lawmaking by Parliament is one aspect of the rule of law. But just as important is the principle that individuals and the communities in which they live are entitled to the protection of law. This depends on citizens having access to processes to obtain the law’s protection.
2 The processes by which law is maintained constitute the justice system. Ultimately dependent on the courts (although not confined to the courts), the justice system provides the means for resolving disputes about the law’s meaning and application. It applies to disputes between citizens, and disputes between citizens and the state. The justice system is of such importance in the lives of all New Zealanders that it can be likened to a public building whose existence and location must be known by all. More than that, we must all be able to approach and enter the building, and to make our way through its corridors and floors to the rooms we need to visit, before leaving through its exit doors.
3 The public building metaphor highlights the fundamental importance of process in any system of justice. This is also evident from a recent English report’s statement that, to ensure justice, a justice system should:
• be just in the results it delivers;
• be fair in the way it treats litigants;
• offer appropriate procedures at reasonable cost;
• deal with cases with reasonable speed;
• be understandable to those who use it;
• be responsive to the needs of those who use it;
• provide as much certainty as the nature of particular cases allows; and
• be effective, adequately resourced and organised. (Access to Justice Final Report, 1996, 2)
4 Few would disagree with such general statements of the necessary features of a justice system. But there is a range of views on the precise meaning of each of those features and on the weight which each should be accorded. The diverse circumstances of the citizens for whom the justice system exists (in terms of wealth, education and culture, for example), and the various interests of those engaged in its operation (including the state, the judiciary and the legal profession), make that range of views inevitable.
5 This study presents information and recommendations to help policy makers and lawmakers understand better the views of New Zealand women about the essential features of a justice system. It is the product of a four-year inquiry that was centred on a programme of consultation with over 3000 women users and would-be users of the justice system. Extensive consultation with justice system personnel was also a vital component of the study.
6 The study is focused on women’s access to legal services – the legal information, advice and representation services that women need if they are to discover and enforce their rights. It does not examine all the matters that might be examined under the heading of “women’s access to justice” – the title given to the project at its inception and by which it was known throughout its course. Of all the areas that women highlighted for attention and that might have been studied in depth, the strength and consistency of women’s concerns about impediments to their access to legal services demanded examination as a matter of priority.
7 The other area which demanded examination as a matter of priority was defined by the strength of the view, among the 900 Mäori women consulted, that their experiences with the justice system revealed the inadequacy of its regard for Mäori cultural values and the Treaty of Waitangi. That is the area explored in the Commission’s report Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53).
8 All the work undertaken in this study confirms the existence of substantial barriers to New Zealanders’ access to legal services. Further, it confirms that women are particularly likely to encounter these barriers when attempting to secure access to the justice system to protect their rights. The result is that:
• some New Zealanders are unable to find out what they need to know about the justice system before they can begin to use it; and
• some are unable to use the justice system even if they know about it.
In terms of the metaphor, some New Zealanders cannot find or use the pathways to the public building which is the justice system. Some cannot afford the price of entry. Some find the corridors to the rooms they need to visit so cluttered as to be impassable. They are compelled to exit through the building’s windows rather than its doors. Barriers such as these thwart the achievement of the justice system’s purpose – to secure the protection of law and just outcomes for all.
9 During 1994, representatives of a number of community groups informed the Law Commission of serious concerns among women about the accessibility and operation of the justice system, and asked that a study be undertaken which paid full attention to those concerns. Shortly afterwards, the Courts Consultative Committee (CCC), whose members include senior judges, justice sector officials and lawyers, invited Commissioner Joanne Morris to join a CCC subcommittee to recommend a course of action to address issues of “gender equity” in New Zealand’s courts. The connections between those separate approaches to the Commission, and its own knowledge of the justice system, led to its decision to undertake the project Women’s Access to Justice: He Putanga Mö Ngä Wähine ki te Tika.
10 The project’s terms of reference were developed by the Commission in mid-1995, with assistance from the Ministry of Women’s Affairs and the members of Te Roopu Uho (the group of senior Mäori women, led by the late Hepora Young, who planned and conducted the nationwide programme of consultation with Mäori women (see Appendix, para A26)). By that time, there had been a preliminary round of consultation meetings and interviews with women users of the justice system and with justice system personnel, but it was known that the further consultation which lay ahead, including the targeted consultation with Mäori women, would be critical to the task of defining precisely the study’s boundaries. Accordingly, the description of the study that was included in the terms of reference was couched broadly, to embrace all the matters which could, on the basis of the information gathered to that time, become the subject of in-depth examination. In this, the terms of reference were (and are) unusual for Law Commission projects, for they cannot be read in isolation from an understanding of the qualitative research methodology that the project employed. That methodology is described in chapter 2 and the Appendix.
11 The outcomes of the project were, however, plain from the outset: to ensure that the lessons learned from a study of women’s experiences in securing access to the “building” which is the justice system could in future be applied to bring about improvements not only in the parts of the building studied in most depth but also more generally. That is why, in stating the project’s outcomes, the terms of reference give priority to the goal of identifying “principles and processes to be followed by policy makers and lawmakers . . . which will promote the just treatment of women”.
12 Approved by the Minister of Justice in September 1995, the terms of reference state:
WOMEN’S ACCESS TO JUSTICE:
HE PUTANGA MÖ NGÄ WÄHINE KI TE TIKA
The Law Commission: Te Aka Matua o te Ture will examine the response of the legal system to the experiences of women in New Zealand, recognising the importance of the Treaty of Waitangi in the examination of Mäori women’s experiences.
The Law Commission: Te Aka Matua o te Ture will take account of the multi-cultural character of New Zealand society and New Zealand’s obligations under international law.
Priority will be placed on examining the impact of laws, legal procedures and the delivery of legal services upon:
• family and domestic relationships,
• violence against women, and
• the economic position of women.
At all stages of the project, there will be widespread consultation with women throughout New Zealand. The project will also draw upon, and complement, the work of other government agencies, the Judicial Working Group on Gender Equity and other Law Commission projects.
The Law Commission: Te Aka Matua o te Ture will report to the Minister of Justice concerning:
• principles and processes to be followed by policy makers and lawmakers,
• specific law reforms, and
• educational and other strategies
which will promote the just treatment of women by the legal system.[1]
13 As had been anticipated, the exact boundaries of the Commission’s study of “women’s access to justice” were defined as a result of the consultation that was conducted after the terms of reference were approved. Four major factors influenced the definition process:
• the priority which Mäori women accorded to the Treaty of Waitangi in any consideration of their access to justice (the subject of the Commission’s report Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53));
• the priority which women from all social groups accorded to their concerns about barriers to their access to legal services;
• the Commission’s financial and human resources; and
• the fact that various relevant initiatives were being undertaken elsewhere in the justice sector. (For example, during the early stages of the project, reforms to the domestic violence laws were introduced and passed (the Domestic Violence Act 1995); bills were being prepared (and later introduced) to change the laws governing the division of matrimonial property and the property of de factos; and the Department for Courts began implementing its Change Programme.)
14 While not claiming to be a comprehensive examination of “women’s access to justice”, this study of women’s access to legal services provides insights that are relevant to any consideration of the justice system’s responsiveness to women’s needs. One reason is that an inquiry into the accessibility of legal services is an inquiry into the accessibility of the processes available to people to discover and take action to enforce their lawful rights. Since processes are integral to the entire justice system, the lessons learned in the legal services area, which is closest to consumers, can be expected to be of more general value.
15 Further, the delivery of legal services involves all three of the sectors which participate in the organisation of New Zealand society:
• the state sector (which is involved in the provision of legal services through government funding of the legal aid schemes and the courts, for example);
• the private sector (which is involved through the legal profession’s dominance in the provision of legal advice and representation services); and
• the not-for-profit sector (which is involved through community groups’ vital role in providing legal information and advice services).
Since a study of women’s access to legal services requires an examination of some of the activities of all three of those sectors, it provides a solid foundation for the primary task set by the terms of reference: to identify “principles and processes, to be followed by policy makers and lawmakers . . . which will promote the just treatment of women by the legal system”.
16 An overview of the scope of this study is needed before the premises on which it is based are discussed. Details of the methodology employed are provided in chapter 2 and the Appendix. For present purposes, it is sufficient to note that the first concern of the Commission’s project team was to find out whether there are barriers which impede some women’s best efforts to invoke the law to uphold the rights which it grants to all New Zealanders. It was to this end that the extensive consultation programme, which reached more than 3000 women, was conducted.
17 The results of the consultation with women were the primary focus of six papers, published by the Commission between October 1996 and November 1997. They provided the basis for the further consultation, research and analysis that has been undertaken since. The titles of the six papers reveal the study’s focus on the barriers to women’s access to legal services:
• Information About Lawyers’ Fees (NZLC MP3);
• Women’s Access to Legal Information (NZLC MP4);
• Women’s Access to Civil Legal Aid (NZLC MP8);
• Women’s Access to Legal Advice and Representation (NZLC MP9);
• Lawyers’ Costs in Family Law Disputes (NZLC MP10); and
• The Education and Training of Law Students and Lawyers (NZLC MP11).
18 Five major themes pervaded women’s accounts of the impediments they encountered in their efforts to obtain legal services suitable to their needs. They are:
• Communication – which refers to a range of difficulties women had experienced in obtaining sufficient information to decide whether and how to use the justice system to resolve particular problems affecting them and their families;
• Culture – which refers primarily to the difficulties experienced by Mäori women and women from other minority ethnic groups when seeking legal services responsive to their cultural values;
• Caregiving – which refers to the difficulties that women caregivers had experienced in obtaining legal services appropriate to their needs;
• Cost – which refers to the cost of legal services and the difficulties women had experienced in obtaining services they could afford; and
• Control – which refers to the cumulative effect of the various difficulties women had experienced: an unduly limited ability to participate in the management and resolution of their legal problems.
19 An assessment of why and how those themes describe barriers to women’s access to legal services, and what may be done to remove them, requires an understanding of women’s social and economic circumstances, as well as an understanding of legal services delivery in New Zealand. Three sets of information provide the context for that assessment, and they are the subject of chapters 3 to 5 of this study. The contextual information consists of:
• a summary of what women told the Commission’s project team about their access to legal services (chapter 3);
• a statistical account of the circumstances of women in New Zealand (chapter 4); and
• a description of the legal services that are available to New Zealanders (chapter 5).
20 The focus of chapters 6 to 11 is on the range of legal services available to women. Among the matters that are explored for their responsiveness to women’s diverse needs are:
• the mix of legal services available from community-based sources and private lawyers;
• the civil legal aid scheme;
• the regulation of the quality of private lawyers’ services; and
• the education and training of law students and lawyers.
21 That general introduction to the scope of the study enables its premises to be examined. Three matters are critical to the approach that it takes to women’s access to legal services: equality, gender and the diversity of women’s life experiences.
22 It is a fundamental principle that all are equal before the law. The diversity in New Zealanders’ social and economic circumstances means, however, that we are not all equally well placed to obtain access to the justice system to protect our lawful rights. While the justice system is not the cause of the social and economic differences among New Zealanders, the fairness of its processes is properly measured by their responsiveness to the range of needs which exists as a result of those differences. In particular, if the means of obtaining access to the justice system are not responsive to the needs of those who are already disadvantaged in social and economic terms, their ability to obtain the law’s protection will be prejudiced. For this reason, the means by which access to the justice system is obtained are critically important to the achievement of equality before the law. (See further, Harris 1995, 282.)
23 In light of that, a study of New Zealand women’s experiences in securing access to the justice system is important because, although New Zealand is committed to achieving the equality of women and men, women do not enjoy social and economic equality with men. Further, the causes and effects of the disparities between women’s and men’s lives are not well understood by all of those who are in positions to help redress the imbalance. Statistical evidence of those disparities is provided in chapter 4 of this study. By way of example:
• the median[2] annual personal income of New Zealand women is $12 600 while the median annual personal income of men is $22 000;
• 34 percent of working-age women are employed full time in paid work while 59 percent of working-age men are employed full time in paid work;
• women employed in full-time paid work earn 80 percent of the earnings of men in full-time paid work;
• 86 percent of dependent children who live in one-parent families live with their mother;
• one-parent families have a median annual income of $16 900 while two-parent families have a median annual income of $50 200;
• in the year to 30 June 1998, 91 percent of the 7195 applications for protection orders (for domestic violence) were made by women and 91.5 percent of all applications made were against male respondents.
24 The government’s recognition of the need to understand better the causes and effects of the differences between women’s and men’s lives is demonstrated by the existence and work of the Ministry of Women’s Affairs. The Ministry not only provides gender-specific advice to the government but also seeks to share its knowledge and experience with other state sector agencies as well as with private and not-for-profit sector organisations. The activities of all three sectors are relevant to the government’s international obligations in respect of the status of New Zealand women. This is apparent from the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which requires state parties (including New Zealand) to take action to prevent discrimination against women. Article I of the Convention defines discrimination to mean:
any distinction, exclusion or restriction made on the basis of sex which has the effect or the purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. (Human Rights Fact Sheet No 22, 1995, 7)
25 The laws which implement New Zealand’s international obligations to prevent discrimination against women include the Bill of Rights Act 1990 (s 19), the Human Rights Act 1993 (s 21)[3] and the Domestic Violence Act 1995 (s 5). Laws such as those, and the attitudes which underlie them, have been particularly effective in preventing direct (or overt) discrimination against women. However, the persistence of social and economic inequalities between women and men suggests that indirect discrimination, by policies and practices which have the effect of prejudicing women as a group compared to men as a group, remains an obstacle to the achievement of their equality. Section 65 of the Human Rights Act 1993 is focused on that type of discrimination. It makes it unlawful to discriminate, in any of the circumstances to which the Act applies (including in employment matters, access to places, and the provision of goods and services), by means of:
any conduct, practice, requirement or condition that . . . has the effect of treating a person or group of persons differently on one of the prohibited grounds of discrimination . . . unless the person whose conduct or practice is in issue, or who imposes the condition or requirement, establishes good reason for it.
Gender
26 Understanding of the concept of gender has been enhanced by the considerable efforts that have been made world-wide to comprehend why discrimination against women is a resilient feature of social organisation. Gender does not refer merely to the fact of the biological differences between the sexes. As the Australian Law Reform Commission explains:
Gender describes more than biological differences between women and men. It includes the ways in which those differences, whether real or perceived, have been valued, used and relied upon to classify women and men and to assign roles and expectations to them. The significance of this is that the lives and experiences of women and men, including their experiences of the legal system, occur within complex sets of differing social and cultural expectations. (Equality before the law, DP 54, 1993, 1 (emphasis added))
27 Accordingly, gender is a social construction: the product of a society’s history of understandings about women and men and of the incorporation of those understandings in social institutions, including, for example, those of the family, the marketplace and the law. Simply put, gender is part of a society’s culture – part of what it knows about the world (Equality before the law, DP 54, 1993, 2 citing Fontana Dictionary of Modern Thought, 1988, 348).
28 The fact that gender is part of a society’s culture provides insights into why it is so difficult, even for a society that is committed to achieving the equality of women and men, to implement changes that will achieve that goal. It also reveals that laws which prohibit discrimination are just a small part of the efforts needed to bring about that result. What is needed most of all is:
an opportunity to think in a different way; to challenge stereotypical thinking; to see new opportunities to assist, deliver and improve performance for individuals, communities and organisations. (The Full Picture: Te Tirohanga Whänui, 1996, Foreword by the Minister and Associate Minister of Women’s Affairs, 4)
Substantive equality
29 Part of the challenge now being made by policy makers and lawmakers to “stereotypical thinking” about women’s and men’s roles is the result of increasing awareness that assumptions which are prejudicial to women are incorporated in some understandings of what is meant by the equality of women and men. For example, a prevalent view (known as the “formal equality” of treatment, or the gender-neutral approach) is that the equality of women and men requires, as a general rule, that women and men should be treated identically, as if there were no relevant pre-existing differences in their circumstances. That approach to equality would, however, justify any policy which set eligibility conditions for some social asset (such as paid employment or promotion in employment) that are less likely to be met by women as a group than by men as a group.
30 An example of a policy which depends on the formal equality approach would be one which limits eligibility for certain kinds of employment to people over six feet tall. Plainly, the biological differences between the sexes mean that women are less likely than men to meet such a condition. A less obvious example would be a job promotion policy which, openly or otherwise, rewards only those workers who devote large amounts of time to their jobs in addition to ordinary working hours. In a social context in which women perform the majority of unpaid work in the home, whether or not they are also in paid employment, that condition for promotion will be less likely to be met by women than by men. Increasingly, it is accepted that a major reason for the continuing social and economic inequalities between women and men is the durability of formal equality policies which, regardless of their intention, have the effect of entrenching pre-existing differences between women and men.
31 Another approach to equality (the “differences” approach) is rarely visible in New Zealand today. It justifies treating women less advantageously than men when there are differences between them which are believed, by those in positions to decide the matter, to be so significant as to require that approach. The differences approach to equality would justify the wholesale exclusion of women from eligibility for some social asset that is available to men (such as particular kinds of education or employment) on the basis that the biological or social differences between women and men are so great that women are not equipped to possess that asset. Notably, it was this approach that justified New Zealand women’s exclusion by law from membership of the legal profession until 1896, from the vote until 1893 and from standing as candidates for Parliament until 1919.
32 The weaknesses in the formal equality and differences approaches have been described as follows:
What they have in common is that both use men as the benchmark: the first requires women to be the same as men; while the second stresses women’s differences from men. Neither challenges maleness as the standard. Emphasizing women’s similarity to, or difference from, men has the effect of distracting attention from the major issues of systemic inequality between women and men. (Graycar 1995, 22 (emphasis in original))
33 The modern understanding of what is needed to achieve the equality of women and men is known as the “substantive equality” approach. It recognises that the achievement of equality depends on the implementation of policies and laws which produce outcomes (results) which are equitable between women and men. And, because the existing differences between women and men (produced by the social construction of gender) are often relevant, it also recognises that the achievement of equitable outcomes between women and men may require the implementation of policies or laws which treat them differently.[4]
34 As has been noted, the Convention on the Elimination of All Forms of Discrimination Against Women prohibits policies or practices which have the effect (not merely the purpose) of impairing the recognition, enjoyment or exercise of women’s human rights in all fields of social endeavour. There is now a body of authority which emphasises the need for state parties to the Convention to adopt a substantive approach to the equality of women and men in their local policies and laws. For example, a series of Commonwealth Regional Judicial Colloquia on the promotion of the human rights of women and the girl child has resulted in the Victoria Falls Declaration of 1994, the fifth principle of which is that:
The participants recognised that discrimination against women can be direct or indirect. They noted that indirect discrimination requires particular scrutiny by the judiciary. The participants, further, emphasised the need to ensure not only formal, but also substantive equality for women and, for that purpose, affirmative action may be adopted if necessary. (Commonwealth Secretariat 1997, 5)
That Declaration was reaffirmed in the 1996 Colloquium for senior judges in the Asia and South Pacific regions, which includes New Zealand.
35 Momentum has been given to the implementation of substantive equality between women and men by the adoption, at the Fourth World Conference on Women in 1995, of the Beijing Declaration and the accompanying Platform for Action. They state why and how governments will accelerate the removal of the obstacles to women’s active participation in all spheres of public and private life. The Platform for Action specifies twelve critical areas of concern and the strategic objectives and actions that are needed to tackle them. Many of the specified actions are directly relevant to women’s access to legal services that are responsive to their needs. For example:
• Ensure access to free or low-cost legal services, including legal literacy, especially designed to reach women living in poverty (Actions 58(p) and 61(a), to be taken by governments);
• Support and develop gender studies and research at all levels of education, especially at the postgraduate level of academic institutions, and apply them in the development of curricula, including university curricula, textbooks and teaching aids, and in teacher training (Action 83(g), to be taken by governments, educational authorities and other educational and academic institutions);
• Promote an active and visible policy of mainstreaming a gender perspective in all policies and programmes related to violence against women; actively encourage, support and implement measures and programmes aimed at increasing the knowledge and understanding of the causes, consequences and mechanisms of violence against women among those responsible for implementing these policies, such as law enforcement officers, police personnel, and judicial, medical and social workers, as well as those who deal with minority, migration and refugee issues, and develop strategies to ensure that revictimization of women victims of violence does not occur because of gender-insensitive laws or judicial or enforcement practices (Action 124(9), to be taken by governments);
• Disseminate information on national legislation and its impact on women, including easily accessible guidelines on how to use a justice system in order to exercise one’s rights (Action 233(c), to be taken by governments and non-governmental organisations . . . as appropriate). (United Nations, 1996)
36 At the conclusion of the Beijing World Conference, the Secretary-General of the United Nations spoke of the importance of translating commitment to the equality of women and men into action:
The movement for gender equality the world over has been one of the defining developments of our time . . .
Despite the progress made, much, much more remains to be done. While women have made significant advances in many societies, women’s concerns are still given second priority almost everywhere. Women face discrimination and marginalization in subtle as well as flagrant ways . . .
The sign at the entrance to the NGO [non-government organisations] Forum . . . calls on us to “Look at the world through women’s eyes”. For the past two weeks, the world has done just that. We have seen that, despite the progress made since the First World Conference on Women, 20 years ago, women and men still live in an unequal world. Gender disparities and unacceptable inequalities persist in all countries. In 1995 there is no country in the world where men and women enjoy complete equality.
The message of this Conference is that women’s issues are global and universal. Deeply entrenched attitudes and practices perpetuate inequality and discrimination against women, in public and private life, on a daily basis, in all parts of the world. At the same time, there has emerged a consensus that equality of opportunity for all people is essential to the construction of just and democratic societies for the twenty-first century. The fundamental linkages between the three objectives of the Conference – equality, development and peace – are now recognized by all. (United Nations, 1996, 2)
37 The most familiar New Zealand measures designed to achieve substantive equality (equitable results) between women and men are those found in some sectors of the labour market in the form of Equal Employment Opportunities policies. Working against the more general acceptance of such measures, however, is the strength of the network of social attitudes, values, practices and behaviours which classify women and men, and which have been built into the operations of society’s institutions as part of the “way things are done”. Indeed, it is the very “ordinariness” of the disadvantages that flow to women from the social construction of gender that is referred to by the expression “systemic bias” or systemic discrimination against women.
38 To talk of systemic gender bias in a social institution, such as a justice system, is not to assert that some, let alone all, who are associated with it consciously act in ways which prejudice women. Rather, systemic gender bias refers to the range of ways by which the ordinary practices of the system have the effect, however unintended, of discriminating against women by making it more difficult for women as a group than men as a group to use the system for the purposes for which it exists.
39 Although it is novel in New Zealand for a study to focus on systemic gender bias in any part of the justice system, there have been many overseas studies of a similar kind. Most numerous are those which have examined how particular courts’ practices and procedures may unwittingly be prejudicing women’s interactions with them, whether as clients, court staff, lawyers or judges.[5] It is significant that all of those studies have concluded that some of the procedures and practices of each court, and some of the laws which each applies, have the unintended effect of disadvantaging women as a group compared to men as a group. It is significant too that all have identified the reason to be that the differences between the social and economic circumstances of women’s and men’s lives render women less likely to meet the standards or assumptions which underlie the particular procedures, practices and laws.
40 An assessment of existing and proposed policies for their achievement of equitable outcomes for women and men requires an examination of the context within which the policies operate. Of critical importance is an understanding of the differences between women’s and men’s lives, and of how those differences may influence the policies’ effects on women and men. On its own, however, such an examination will not reveal the effects of all of the other social constructions (apart from gender) that also play vital roles in the lives of all New Zealanders and that differentiate among groups made up of both women and men. Other social constructions well recognised for their significance in the lives of the groups identified by them include race, ethnicity, physical and mental ability, sexual orientation and age.
41 The social context within which policies and laws operate therefore contains a complex mix of “dimensions”, each of which influences the results that will flow from particular policies and laws to different groups of New Zealanders. The task of policy makers and lawmakers involves taking account of all those different dimensions. But that is an exceedingly difficult task because, like everyone else in society, individual policy makers and lawmakers “inhabit” only some of the various social dimensions. Inevitably, this distorts their understanding of the larger social context.
42 What are needed, therefore, are means by which policy makers and lawmakers can be assisted to look at each of the different dimensions which make up the social context that surrounds their work. It is helpful to imagine these means as a set of lenses for policy makers and lawmakers to look through. Each lens provides a clear view into one social dimension and offers insights to its connections to the other dimensions, and all the lenses are needed to see the complex construction of the whole.
43 This leads to a further reason why a study of women’s experiences in securing access to the justice system is of particular importance. It stems from the fact that women are represented in the full range of social groups that can be identified by their members’ race, ethnicity, physical and mental ability, sexuality, age or, indeed, any other factor which is accorded social significance. As chapter 4 indicates, there are substantial disparities among the social and economic circumstances of New Zealanders from many of the majority and minority groups identified by social factors other than gender, as well as between the women and men who make up their numbers. Further statistical information about the disparities between Mäori and non-Mäori New Zealanders and between Mäori women and men is provided in Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53, chapter 4).
44 In addition to the reciprocal obligations between the Crown and Mäori that are undertaken in the Treaty of Waitangi, New Zealand has accepted international obligations to prevent discrimination against the members of a range of social groups. These have been implemented in local laws, most notably the Bill of Rights Act 1990 and the Human Rights Act 1993.[6] Again, however, and despite the work of such agencies as Te Puni Kokiri (Ministry of Mäori Development), the Human Rights Commission, the Ministry of Pacific Islands Affairs and the Ministry of Health, the causes and effects of the inequalities among different social groups are not well understood by all who are in positions to help redress the imbalance.
45 A study of women’s experiences which also seeks to highlight the differences among the experiences of women from different social groups can, therefore, provide insights to the various “dimensions” of New Zealanders’ lives – dimensions that are relevant to groups made up of both women and men. In this way, the study can provide cross-references which match the diversity of New Zealand communities.
46 The Law Commission was well aware of that fact when it began its study of women’s access to justice. Accordingly, particular care was taken in the design of the consultation programme so that it reached substantial numbers of women across the range of groups identified by their members’ race and ethnicity, physical and mental ability, sexuality, age and religious beliefs. This was made possible through the generous assistance of community groups, government agencies and individuals with strong links with women from the various social groups (see further chapter 2 and the Appendix). As a result, this study of women’s access to legal services provides insights that are relevant to all New Zealanders’ access to those services.
47 The focus on the significance of gender in this study does not seek to diminish the significance of other socially constructed differences among New Zealanders which have the effects of disadvantaging groups made up of both women and men. Instead, it is intended to ensure that the effects of gender on women from all social groups are better understood by justice system personnel and, particularly, by those who are responsible for providing the legal services which are the prerequisite for any New Zealander’s use of the justice system.
48 The appropriateness of the study’s emphasis on gender was the subject of considerable discussion, both at its outset and during the consultation programme, with women who identify strongly with other social groups, and particularly with Mäori and Pacific Islands women. The view taken by the great majority of those women was that the fact of being female in New Zealand society, with all that it entails, provides a degree of unity in the life experiences of women from different groups which is of particular importance to their experiences of the justice system. For example, women from all groups consulted were acutely aware that women have had, and continue to have, limited roles in the justice system as lawmakers, judges and lawyers. And, significantly, the women saw that fact as limiting the ability of both the law and the processes by which it is maintained to be responsive to all women’s needs. Further, women from all groups emphasised the importance of accessible legal services because such services were seen to be the prerequisite to relying on the law to help achieve the equality of women and men.
49 That commonality of view did not, however, obscure the fact that women’s membership of different social groups leads to substantial differences in their life experiences and in their experiences and views of the justice system and justice. This was nowhere more evident than in the accounts that Mäori women gave of how their experiences and understandings are shaped by Mäori cultural values and by the Treaty of Waitangi which protects those values. It is those foundation-stones of the women’s experiences and understandings that are explored in the Commission’s report Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53). That report offers policy makers and lawmakers a contextualised analysis of the systemic barriers to Mäori women’s access to justice that were described in the consultation programme with Mäori women around the country. Accordingly, it explores the history of Mäori women’s experiences of the justice system that was introduced with English settlement, as well as fundamental Mäori cultural concepts and the contemporary demographic profile of Mäori women. It then fashions a Treaty-based analytical tool for use by policy makers and lawmakers in their efforts to promote the just treatment of Mäori women by the justice system.
50 This study is premised on the view that the “Treaty lens”, the “gender lens”, and many others besides, are needed by all who are in positions to promote the just treatment of New Zealand women by the justice system. It does not claim to have used to their fullest effect all the “lenses” on society which would enable every one of its important dimensions to be revealed in fine detail. It has, however, through extensive consultation with and further input from substantial numbers of women from the range of social groups, highlighted numerous situations in which some groups of women encounter far greater difficulties than others in obtaining access to legal services that are responsive to their needs.
51 The result is that it is sometimes very apparent that the causes of particular difficulties for some women are less closely associated with the social force of gender than with other factors which make up the multi-dimensional network of New Zealand society. This is the case, for example, when women with physical disabilities are impeded from obtaining access to legal services because of the design or location of service providers’ premises, or when women who are not fluent in English are impeded in their efforts to obtain legal information and advice in their own languages. Accordingly, this study offers insights into the way in which our society defines the effects of physical ability and disability, of English language skills and the lack of them, and a range of other factors which are invested with social significance.
52 Sometimes, too, it is apparent that the difficulties experienced by Mäori women are symptomatic of the far deeper causes of their disadvantage that are explored in the Commission’s report Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53). Again, this study offers insights into those matters, but always in the knowledge that the in-depth exploration conducted in that report provides the context and analysis that is needed to more fully understand the experiences of Mäori women.
53 To this point, the lenses metaphor has been used to highlight the importance of policy makers and lawmakers having the analytical tools to take best account of the multi-dimensional nature of the social context which surrounds their work. It has not meant to imply that there exists in New Zealand a full set of those tools, all of them expertly crafted and in regular use by all. The reality is far removed from that. Instead, there are different groups of policy makers (in the state, private and not-for-profit sectors) and different groups of lawmakers (Parliament, its delegates and the courts) who are concerned with different parts of the spectrum of social activity at different times and for a range of different reasons that are tied to the aspirations which each group is seeking to achieve. The result is that there is a mixture of tools in use by the various policy makers and lawmakers and some have been fashioned without particular regard for the need to understand the differences between the lives of women and men or among the lives of different groups made up of both women and men.
54 Further, it is the case that the tools of social context analysis in New Zealand are not yet fully developed and that those which exist present challenges for new users. One reason for the difficulties posed to new users is that social context tools employ a range of information sources and skills in order to achieve their purpose, and some of these are unfamiliar to people who are accustomed to using different analytical tools. Another reason is that the purpose of the tools is not necessarily well understood by all who are in positions to use them. The most obvious example of misunderstanding is when such tools are disparagingly labelled as being for “politically correct” purposes. And, where there is misunderstanding about the purpose of the tools of social context analysis, it may be that even their names (for example, “gender analysis”, “Treaty analysis”) will be disconcerting for some potential users.
Gender analysis
55 The form of social context analysis which has been developed in New Zealand by the Ministry of Women’s Affairs (and which it calls gender analysis) is the result of that Ministry’s accumulated experience in providing gender-specific advice to government on major public policy issues affecting women. In 1996, a decade after its establishment, the Ministry published guidelines for use by all policy makers – whether in the public, private or not-for-profit sectors – to enable the social context tool of gender analysis to be more widely employed. This was consistent with the specification made in the Platform for Action that governments, intergovernmental organisations, academic and research institutions and the private sector should:
Develop conceptual and practical methodologies for incorporating gender perspectives into all aspects of economic policy-making, including structural adjustment planning and programmes; and
Apply these methodologies in conducting gender-impact analyses of all policies and programmes, including structural adjustment programmes, and disseminate the research findings. (Platform for Action, Action 67(a) and (b))
56 The Minister and Associate Minister of Women’s Affairs wrote in the Foreword to the publication:
This Government has a commitment to achieving equity for women. This tool will assist in delivering on that commitment. We would urge all those involved in policy and service design to use these guidelines. (The Full Picture: Te Tirohanga Whänui, 4)
57 The publication explains at the outset that gender analysis is “complementary to other policy guides, and therefore does not address all issues to be considered in the formulation of policy advice or service delivery”. (The Full Picture: Te Tirohanga Whänui, 5) Rather, it:
examines the differences in women’s and men’s lives, including those which lead to social and economic inequity for women, and applies this understanding to policy development and service delivery . . .
provides a basis for robust analysis of the differences between women’s and men’s lives and this removes the possibility of analysis being based on incorrect assumptions and stereotypes . . .
makes women and women-dominated population groups visible. (The Full Picture: Te Tirohanga Whänui, 7–9)
58 The benefits of this type of social context analysis are then explained at some length (see The Full Picture: Te Tirohanga Whänui, 10–14). For public sector agencies, four social and economic benefits are identified; namely, that gender analysis:
• assists in ensuring maximum participation by women [which] increases benefits to society from women’s skills;
• ensures better targeting of policies and programmes;
• broadens the focus of economic analysis to inspire different questions to be asked and issues raised; and
• enables agencies to analyse systematically whether the outcomes of policies and services are equitable. (The Full Picture: Te Tirohanga Whänui, 10)
59 For private sector organisations, the use of this form of social context analysis is said to make good business sense as it can provide them with a mechanism for ensuring:
• a quality approach to products and services;
• improved management practice;
• an enhanced customer focus. (The Full Picture: Te Tirohanga Whänui, 12)
60 The premises of gender analysis, as stated by the Ministry of Women’s Affairs, will be familiar from the earlier discussion in this chapter. Gender analysis recognises that:
• women’s and men’s lives and therefore experiences, needs, issues and priorities are different;
• women’s lives are not all the same; the interests that women have in common may be determined as much by their social position or their ethnic identity as by the fact they are women;
• Mäori women’s life experiences, needs, issues and priorities are different from those of non-Mäori women;
• the life experiences, needs, issues and priorities vary for Pacific women and other groups of women (dependent on age, ethnicity, disability, income levels, employment status, marital status, sexual orientation and whether they have dependants);
• different strategies may be necessary to achieve equitable outcomes for women and men, and different groups of women. (The Full Picture: Te Tirohanga Whänui, 7)
61 The prerequisites for the use of gender analysis in the policy process are explained by the Ministry to be, first, for government agencies at least, familiarity with the requirements that are to be found in government policy direction documents (including Strategic Result Areas) and the Treaty of Waitangi. Second, gender analysis requires the ability to use both data-based and consultation-based methods of information gathering. The data which is needed must be “relevant, reliable and up-to-date” and include both quantitative data, collected and analysed “by gender and ethnicity as a minimum base from which to predict outcomes”, and qualitative data, to assist in interpreting the quantitative data. That is because “statistics alone do not provide reasons or explanations for gender differences, patterns and trends”. The consultation strategy that is needed must enable “an assessment to be made of the views of those who are directly affected by policy decisions or design of services”. An important part of that strategy, particularly when existing policy is being reviewed, is the provision of community feedback: “Interested members of the community, users and providers and key stakeholders are all likely to provide useful feedback. This enables the range of different effects to be considered in the policy process”. (The Full Picture: Te Tirohanga Whänui,
17–26)
62 The previous two paragraphs have outlined only the premises and prerequisites to use of the tool of social context analysis developed by the Ministry of Women’s Affairs. The actual process of developing and implementing policy by means of that analysis, as described by the Ministry, involves six steps, three of which utilise the information gathering methods outlined above (see The Full Picture: Te Tirohanga Whänui, 16 and 18–21). The point, for present purposes, is that what is required in order to begin using this form of social context analysis is far from being familiar to all policy makers. Indeed, the most basic of the information sources on which the analysis depends – quantitative data collected and analysed by sex and ethnicity – may not be available to some because the analytical tools they have always used have never required that information. And the consultative methods of information gathering on which the analysis depends will pose particular difficulties for policy makers who have not fostered close links with the communities affected by their decisions.
63 It is pertinent to note here that quantitative data about the justice system often fails to meet the minimum requirements of being collected and analysed by sex and ethnicity. In some areas of the justice system, including some for which state agencies are responsible, neither the sex nor ethnicity of users of its services is known. For example, information about the sex and ethnicity of parties to court proceedings is not routinely gathered. In the legal services arena there are numerous gaps in the available quantitative data about the users of different types of services. For example, there has been no collection of data about the sex and ethnicity of legal aid users, and even sample studies of legal aid files cannot assist in revealing ethnicity. There is no database of private lawyers’ clients (for commercial reasons). Many community-based providers of legal services do, however, collect and publicise demographic data about their clients (including sex and, where possible, ethnicity data). One reason is that many such providers need to demonstrate to the funders of their services how and for whose benefit the funding is being used.
64 It will be recalled that the primary task set by the terms of reference is to identify “principles and processes to be followed by policy makers and lawmakers to promote the just treatment of women by the legal system”. From all the work undertaken in this study of women’s access to legal services, and which has been conducted in the light of the understandings (outlined above) of equality, gender and the diversity of women’s life experiences, six principles have been distilled to guide New Zealand policy makers and lawmakers. They are the principles of:
• Diversity – diverse responses must be made to meet the diversity of needs;
• User focus – services must be responsive to users’ needs;
• Informed participation – users of the justice system must be kept informed about the application of the system to their circumstances;
• Community participation – the laws, procedures and services of the justice system must be developed with community involvement;
• Co-ordination – the range of justice system services must be co-ordinated; and
• Accountability – justice system procedures and services must be regularly monitored, evaluated and reviewed.
65 As can be seen, those principles are general statements of values which are meaningful for all New Zealanders. In particular, their emphasis on diverse responses to meet diverse needs, and on community participation in the development of the laws, procedures and services of the justice system, demands that the values and needs of all social groups be understood by policy makers and lawmakers. As has been discussed, however, the necessary understanding of diverse groups’ values and needs cannot be assumed. Rather, it must be cultivated, by processes designed for that purpose. Indeed, that is part of the requirement of the principle of accountability.
66 This study of women’s access to legal services has revealed that the process which should be followed by policy makers and lawmakers if they are to understand New Zealand women’s needs and values involves all four of the following components:
• the use of an analysis which recognises, in the identification and definition of problems, the differences between the lives of women and men, and among the lives of different groups of women and men;
• appropriate consultation throughout the process of policy development with women, community groups and other relevant organisations;
• the development of proposals designed to meet the problems identified and the diverse needs of women, the outcomes of which are measurable; and
• the creation of systems to monitor, evaluate and review the effectiveness of policies and laws in meeting the diverse needs of women.
67 Plainly, that process requires the use of what the Ministry of Women’s Affairs calls gender analysis. As has been explained, that form of analysis is not the only analytical tool which is needed by policy makers and lawmakers. But it is an essential tool in all efforts to promote the just treatment of women by the justice system. Accordingly, one of the recommendations made in this study is that all future inquiries into the effectiveness of the justice system should be conducted in light of the six principles and by means of the four part process which the study has identified as being essential to promote the just treatment of women.
68 All of the recommendations made in subsequent chapters for enhancing women’s access to legal services (and so their access to the justice system) have been reached by reference to the six principles distilled from the study itself. In addition, the methodology employed throughout the study has been true to the analytical process of gender analysis. The result is that this study of women’s access to legal services fulfils the wisdom of a message imparted to the Law Commission’s project team at one of its earliest meetings with representatives of community groups on the subject of women’s access to justice. At that meeting, the team was advised of the steps it must take to ensure that all groups of New Zealand women had the opportunity to participate in the study. One representative summed up that advice by saying, “The process followed in the study of women’s access to justice must be a model for the outcomes which it intends to achieve”.
69 The study is presented in five main parts:
• Part 1 (chapters 1 and 2), which introduces the area of study and explains the methodology used;
• Part 2 (chapters 3 to 5), which provides the context for the later chapters’ examination of women’s access to legal services;
• Part 3 (chapters 6 and 7), which explores issues relating to the choice that is available between community-based and private lawyers’ legal services, and to the sufficiency of the civil legal aid scheme;
• Part 4 (chapters 8 to 11), which explores, with particular reference to the responsiveness of private lawyers’ services to women’s needs, issues relevant to communication, diversity in service provision and legal education; and
• Part 5 (chapter 12 and Summary of Recommendations), which offers comment on the direction of further studies of the justice system to promote the just treatment of women, and sets out all the recommendations made.
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