New Zealand Law Commission
|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
New Zealand Law Commission |
|
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
70 THE LAW COMMISSION is a central advisory body established to review,
reform and develop the law. All its members and research staff are lawyers, and the Commission is heavily reliant on legal research, which involves the reading and analysis of primary sources of law (cases and statutes) as well as legal texts, articles and reports. But law does not exist in a vacuum. This fact is recognised in the Law Commission Act 1985 which requires the Commission to take into account te ao Mäori (the Mäori dimension) and to give consideration to the multicultural character of New Zealand society (s 5(2)(a)). It is also the reason why consultation is a significant part of the Commission’s work processes. The study was conducted by a project team headed by Joanne Morris and completed by her.
71 This chapter summarises the major components of the qualitative research methodology used in this study of women’s access to justice. Further information is provided in the Appendix, including an explanation of qualitative research methodologies and information about all of those who were consulted.
72 The project team adopted a qualitative (consultative) research methodology for several reasons. At the outset, it was clear that the first aim of the research was to learn from women what their experiences of access to justice were, not to test any preconceived assumptions of what those experiences might be. The use of a quantitative (survey-based) methodology would have contradicted that objective. The second aim was to ascertain whether there were any problematic systemic issues in women’s access to justice and, if so, to highlight them. Again, an inquiry of that kind lent itself to a qualitative rather than a quantitative approach.
73 The methodology used had six steps:
(a) the gathering and reading of relevant local and international literature (with an emphasis on literature from countries such as Australia and Canada which have a similar cultural and social context);
(b) the development of a consultation guide setting out the broad areas of inquiry;
(c) a preliminary consultation to test the broad areas of inquiry and define more precisely appropriate areas for the terms of reference;
(d) the development and approval of the terms of reference;
(e) more extensive consultation and presentation of findings; and
(f) further consultation, research, analysis and preparation of the two publications.
74 What follows is an outline of the major components of each of steps, except step (d) (the development and approval of the terms of reference) which has already been outlined in chapter 1 (paras 10–12).
75 The first step was to review New Zealand and international literature relevant to women’s access to justice. The Commissioner responsible for the project was also a member of the sub-committee established by the Courts Consultative Committee (CCC) to review the literature on gender issues in the courts, and to a large extent the two reviews overlapped. The bibliography compiled for the CCC (Report and Recommendations of the Subcommittee on Gender Issues, 4 November 1994, Appendix A, 1–7) was a far shorter version of the extensive database of reports, texts and articles gathered by the project team early in the life of the women’s access to justice project (and expanded since). Significantly, the literature review revealed comparatively little New Zealand gender-specific research and writing about the justice system but a substantial body of international (particularly Australian, Canadian and American) reports and academic texts and articles.
76 The focal points of the available gender-specific literature are:
• equality jurisprudence;
• rules of the substantive law (especially criminal, family, employment and personal injury laws) which may be inequitable between women and men;
• the responsiveness to women’s needs of particular courts’ procedures and practices; and
• discrimination against women lawyers in the course of their employment.
77 The next step was the development of a proposal to review women’s access to justice. The initial proposal was to seek the views of women on the operation of the New Zealand justice system in order to find out whether there were problematic systemic issues for women and, if so, to identify them and obtain women’s views on how they could be remedied. To assist, a consultation guide was prepared which identified broad issues relating to the substantive law, court procedures and access to legal services that were considered likely, in light of the literature review, to be of concern. As the consultation process developed, so too did the consultation guide.
78 The preliminary consultation meetings with women users of the justice system were not tightly structured. Members of the project team explained the purpose of the study, outlined the range of issues which the literature review suggested were relevant and then opened the meetings for discussion of the women’s own views and experiences of the barriers to their “access to justice”. The role of team members was to ensure that all in attendance had the opportunity to speak, to ask questions to obtain further information about the experiences women recounted, to answer questions, minute the discussion and, at its conclusion, summarise its content to check that it had been understood.
79 Importantly, during the 26 preliminary meetings held over a 12 month period, women emphasised the thematic nature of their concerns about their access to justice. This provided a very useful framework within which the project team could hear and consider the women’s experiences and views. In particular, it considerably reduced the risk that team members’ own views of the barriers to women’s access to justice would impede their understanding of the women’s concerns. During the course of the preliminary consultation meetings, women identified 11 major themes which ran through their diverse experiences of seeking to obtain access to justice: communication, cost, culture, credibility, conditioning, confidence, control, choice, community, caregiving, and connectedness. (See further Morris J, 1996)
80 By the conclusion of the preliminary consultation process, it was apparent that the predominant focus of the women’s concerns about their access to justice was on the barriers which they experienced when seeking to obtain legal services responsive to their diverse needs. The project team did not, however, want to constrain the scope of the more extensive consultation programme that lay ahead, especially because the bulk of the targeted consultation (including with Mäori women) had yet to be conducted. At that stage, therefore, the 11 themes which women had identified became the basis of the consultation guide that was used in all later meetings.
81 The preliminary consultation process spanned the period from September 1994 to September 1995. It was conducted by means of public meetings, interviews with individual lawyers and women clients, and meetings with women lawyers’ groups and with government agencies.
82 Twenty six public meetings were held, in the five main centres and in Gisborne. These were facilitated by the Commissioner responsible for the project together with the researcher who was project manager from late 1994 until early 1998. Other researchers in the project team also attended a number of the meetings. Over 500 women attended (including numerous community workers and representatives of national and other women’s groups) and spoke about their experiences and understanding of the barriers to their access to justice. Detailed minutes were taken.
83 In addition, on the project team’s behalf, three women (one lawyer and two senior law students) interviewed 15 lawyers in the Wellington and Christchurch areas who were known to have a significant proportion of women clients. Also interviewed (separately) were 15 of the lawyers’ women clients. Four Mäori lawyers and three Mäori women clients were among those interviewed. All the interviews were audiotaped and written up by the researchers in the form of reports to the Commissioner responsible for the project.
84 Meetings were also held (facilitated by the Commissioner and project team members) with each of the seven women lawyers’ groups in the five main centres and, in Wellington, with officials from 16 government agencies, to hear their views of the issues most relevant to a study of women’s access to justice. Again, detailed minutes of those meetings were taken. (See Appendix, paras A13–A17, for further information about the preliminary consultation process.)
85 In this step of the project, which ran from September 1995 until late 1997, the consultation programme was extended. This required proactive measures to ensure the project team reached groups of women most likely to experience difficulties obtaining access to the justice system. As the preliminary consultation had indicated, a very large proportion of the concerns women raised in the extended consultation programme were focused on the legal services arena. Particular attention was given to investigating the context for those concerns. This required more intensive consultation with the agencies most interested in and affected by the issues raised and the use of existing (mainly quantitative) data, especially Census data. It also required the project team to encourage justice system institutions to expand their collection of data about the provision of legal services.
86 The product of this stage of the project was the six consultation papers, published between October 1996 and November 1997, which presented for discussion and comment the urgent concerns that had been raised about women’s access to legal services.
87 There were six major components of this step in the project’s development:
• consultation with individual women and specific groups of women;
• consultation with community groups;
• consultation with members of the legal profession and judiciary, and with government agencies;
• the provision of feedback on the consultation process;
• the use of other (quantitative) research to contextualise the concerns voiced about women’s access to justice;
• the publication of the six papers as the basis for further discussion and comment.
Each of those components is outlined in turn. (Further information is to be found in the Appendix, paras A18–A49.) It was by the end of this stage of the project that input had been received from more than 3000 New Zealand women.
Consultation with individual women and specific groups of women
88 The consultation with women was made possible by the generous assistance given by Te Puni Kokiri (Ministry of Mäori Development), the Ministry of Pacific Island Affairs and many community-based service groups. All used their own networks to publicise the project team’s meetings and the written and telephoned submissions processes, and to introduce members of the project team to women in their communities. As a result, the meetings with women took place in venues as diverse as marae, refugee and migrant centres, civic buildings, community law centres, women’s prisons, citizens advice bureaux, farmhouses, community halls, churches and the offices of the IHC, the Foundation for the Blind, Te Puni Kokiri, the Ministry of Pacific Island Affairs and the Law Commission.
89 All the meetings held throughout this stage of the study were, unless otherwise stated here or in the following paragraphs, facilitated and attended by one or more members of the project team. The project manager and Commissioner responsible for the project together facilitated nearly all of the meetings, other than those conducted by consultants and the hui with Mäori women around the country. One member of the project team, with the assistance of a panel of Mäori women (see Appendix, para A27), facilitated all of the 48 hui held with Mäori women around the country. Other team members attended a wide variety of the meetings, including some of the hui and the meetings conducted by consultants.
90 At this stage, the project team:
• received 292 written and telephoned submissions from individual women and community groups, the contents of which were read by at least two team members so that they could be categorised by the subjects they dealt with then scanned into a computer database which allowed their recall by subject;
• held more than 20 general meetings in various New Zealand centres, attracting some 560 women;
• held 48 hui with Mäori women around the country, attracting some 900 women;
• expanded the Mäori women’s group which organised the hui, and obtained the advice of the larger group on the contents of each consultation paper as it was prepared;
• held four meetings (in Auckland, Wellington and Christchurch) arranged by the Ministry of Pacific Island Affairs and attended by some 150 Pacific Islands women;
• brought together a group of 10 Pacific Islands women to provide input into each of the consultation papers as they were prepared;
• contracted two Pacific Islands women lawyers practising in Otahuhu to conduct and report on a series of interviews and meetings with 60 Pacific Islands women in Auckland;
• held a series of meetings with women with disabilities and with service providers, made possible through the engagement of a consultant who also provided input to the consultation papers and conducted further meetings with disabled people about their content;
• contracted two lesbians (a Mäori community worker and a lawyer) to conduct and report on a series of meetings with lesbians in five New Zealand centres;
• held meetings with rural women in different parts of the country, assisted by workers from REAP (the Rural Education Activities Programme);
• held meetings in two refugee and migrant centres, and secured continuing input to the project by service providers who work with new immigrants; and
• held three meetings with women prisoners.
Consultation with community organisations
91 Hundreds of representatives of over 85 community groups attended the consultation meetings and made written and telephoned submissions. Among the national community organisations represented were:
• The New Zealand Association of Citizens Advice Bureaux,
• The National Collective of Independent Women’s Refuges,
• Rape Crisis,
• The Mäori Women’s Welfare League,
• Pacifica,
• Barnardos,
• IHC,
• REAP,
• The Federation of Voluntary Welfare Organisations,
• Catholic Social Services,
• The Salvation Army,
• The National Council of Women,
• Women’s Division Federated Farmers, and
• The Federation of University Women.
Most of those groups continued to contribute to the project throughout its duration. Many other service groups also had substantial input, including local groups working in Mäori communities, in Pacific Islands communities, with disabled people and with new migrants.
Consultation with members of the legal profession and judiciary, and with government agencies
92 During this stage of the project, the project team also maintained or established contact with hundreds of individuals and groups in the legal profession and throughout the justice sector and other parts of government.
93 One major initiative resulted in more than 200 written submissions from lawyers. The project team arranged with the 14 district law societies for a contact person for the project to be appointed in each district. Through those contacts, a questionnaire prepared by the project team was circulated, asking for lawyers’ comments on a range of matters connected to practices about which women had consistently voiced concerns. Most of the written responses from lawyers included several paragraphs of handwritten explanations and comments. These were collated and scanned into the submissions database using the same range of subject headings as were used for other submissions.
94 Other major activities included:
• meetings with groups of District Court (especially Family Court) judges and with individual judges;
• maintaining regular contact with the Judicial Working Group on Gender Equity through the membership on that body (and its executive group and seminar planning group) of the Commissioner responsible for the project;
• meetings with groups of men and women lawyers in various parts of the country;
• meetings with the women lawyers’ groups;
• regular attendance at meetings of the Women’s Consultative Group of the New Zealand Law Society to report on the project;
• maintaining contact with the Executive Director and staff of the New Zealand Law Society through meetings;
• maintaining contact with the Secretary of Justice through meetings;
• reporting in writing to justice sector agencies the nature of the concerns about their activities which had been raised with us by women; and
• maintaining contact with the Legal Services Board, through meetings and by the appointment of the project manager to the review panel overseeing its quantitative research on contributions and charges in the civil legal
aid scheme.
95 Finally, quite apart from the separate meetings held with groups from the justice system, local lawyers and other justice system workers were frequently represented at the project team’s public meetings with women users and would-be users of the system.
The provision of feedback on the consultation process
96 Everyone who attended a meeting or who made a written or telephoned submission, and any group they represented, was invited to join the mailing list to receive newsletters published throughout the consultation stages of the project. In addition, the newsletters were sent to all Members of Parliament, judges, government ministries and departments, law societies and university law schools. Some 2300 individuals, groups, organisations and agencies received the seven newsletters about the project, containing information about where the project team had been, who it had talked to, what it had been told, where it was going next, how to inform it of any criticisms or suggestions, and how to obtain a free copy of the consultation papers as each one was published.
97 In addition, throughout the project, and especially at this stage, the Commissioner responsible for the project was regularly invited to speak about its progress at various community groups’ meetings. Often, those sessions concluded with workshop or open discussions among those present, providing further input to the project. Groups from the legal profession, judiciary and government also invited and received presentations about the project.
The use of other research to contextualise women’s concerns
98 In the process of preparing the six papers published in the project, considerable use was made of available research relevant to the social circumstances of New Zealand women and to the provision of legal services, most of it quantitative in nature. The Census has been the major source of data about the social context of women’s experiences with the justice system. Throughout much of the inquiry, the 1991 Census was the most recent. Only after the six consultation papers were published was the project team able to obtain the data collected in the 1996 Census.
99 Data relevant to legal services provision was not abundant at the outset of the project, and the project team encouraged those in positions to collect it to improve its quantity and quality. A major research initiative of the New Zealand Law Society involved conducting three polls, of lawyers, the public and law firms, which asked for responses to statements about lawyers’ values, skills, knowledge and other matters relevant to the quality of their services. Released in 1997, the poll results have been of considerable value to this study.
100 Another very valuable source of information has been the sample study, commissioned by the Legal Services Board in 1996, of 2316 civil legal aid files opened in 1994 and 1995. That study provides a demographic profile (excluding ethnicity) of civil legal aid recipients as well as information about the contributions paid by and charges imposed on the property of recipients.
101 Research commissioned by the Judicial Working Group on Gender Equity in 1996 has also been of assistance. A questionnaire designed to elicit their views about gender equity was sent to all New Zealand judges late in 1996, and the results, together with information gathered from focus-group discussions with judges from each of New Zealand’s courts, were reported in 1997.
102 During the course of the project there have been other advances in the collection and collation of data about the operations of the justice system. Of particular relevance are the Legal Services Board’s computerised legal aid records, which now allow the rapid retrieval of a considerable amount of quantitative data that was previously inaccessible except through labour-intensive sample studies of files. Also relevant is the New Zealand Law Society’s recently established database of members.
103 Despite such initiatives, and as was noted in chapter 1 (see para 63), there remains room for improvement in the quality and quantity of the data that is collected on a continuing basis about the justice system’s operation. The Department for Courts’ Change Programme, with its emphasis on improved management of cases and the use of technology, will facilitate the collection of more detailed data about those who are most directly involved in litigation. (See 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), for further explanation of the limitations of present data collection methods within and outside the justice system.)
Publication of six consultation papers
104 A total of 4000 copies of the consultation papers were distributed to community groups, government agencies, lawyers’ associations, university law schools and libraries as well as to individual New Zealanders who requested copies. In the order in which they were published, the papers are:
• 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).
105 Each of the papers attracted considerable publicity within and beyond the legal profession. For example, the New Zealand Law Society published summaries of each one in its fortnightly magazine LawTalk, which is received by every practising lawyer in New Zealand. Many nationally based community groups published the major points from each paper in their own newsletters to members. Doubtless this contributed to the wide range of considered written submissions which were made in response to each paper. In total, 164 written submissions were received.
106 The final step of the project has embraced all the additional research and consultation required to: follow up the six published papers; analyse the mass of information gathered during the project’s four-year course; prepare, for discussion, drafts of this publication and Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53); and finalise their texts.
107 Part of the task involved in the final step of this study has been to consider each of the 164 written submissions made in response to the six consultation papers by government agencies, judges, lawyers, community organisations and individual users of the justice system. In addition, there has been continuing consultation with key groups working in or near the justice system, in order to elicit the greatest possible range of comment on the issues raised in those papers. The willing co-operation of the New Zealand Law Society and the Legal Services Board, in particular, has been invaluable in this process.
108 Finally, to assist the Commissioner responsible for this study, a review group of 12 members was brought together late in 1998 to consider and provide comment on earlier drafts of this publication. Members of the review group included senior judges and a number of lawyers with considerable knowledge and experience across the entire “landscape” of New Zealand legal services. (See Appendix, para A50)
109 It is not claimed that this study offers the “definitive” statement about New Zealand women’s access to legal services. Indeed, no study, whatever its methodology, can legitimately claim that status. It is acknowledged that another group of researchers, coming from perspectives different from those of the project team which conducted the study, may well have given more emphasis to some of the points raised during its course, and less to others. Despite such differences, all the information that is available clearly supports the conclusion that there are substantial barriers to many New Zealanders’ ability to obtain the legal services they need to invoke the justice system’s protection. And, because of the nature of those barriers, it is clear that women are particularly adversely affected by them.
110 The value of this study and of the methodology used is its capacity to add depth to the discussion of women’s access to justice within a context which is now mapped in greater detail and is more fully understood. Further research, which will build on, qualify and challenge the findings of this study, is welcomed.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/nzlc/report/SP1/SP1-2_.html