10 minute read
Judicial Diversity - Beyond “acknowledging” and getting to the “doing”
Genevieve Haszard*
Genevieve Haszard interviews Raana Zahmatkesh, a University of Canterbury PHD candidate researching current levels of gender diversity within the judiciary in New Zealand and the Australian State of Victoria, along with initiatives and policies to improve judicial diversity in the two jurisdictions.
Raana Zahmatkesh
Diversity is a word du jour and at risk of lip service and tokenism in the context of business and societal structures. Yet, diversity in all spheres, business, nature, and our community has been recognised as a critical element in improving decision-making, resilience and responsiveness to challenges.
The legal profession is on notice – our profession has serious diversity challenges. The present levels of diversity in our profession do not reflect the diversity of our population. It is improving, but there is work to be done. This then has a knock-on effect in terms of achieving meaningful diversity of our senior lawyers such as partners and directors of law firms and our King's Counsel.
However, the disparity is even greater when comparing the diversity of lawyers to that of our judiciary. Again, while there are incremental improvements, we are still a long way from being able to celebrate having a truly diverse judiciary.
So why does having a diverse judiciary matter? To answer this question I spoke with Raana Zahmatkesh, a University of Canterbury PHD candidate who, all going to plan, is four months away from concluding her research reviewing the current levels of gender diversity of the judiciary in New Zealand and the Australian State of Victoria, together with each jurisdiction’s respective judicial appointment processes. Importantly, Raana has been looking at initiatives and policies to improve judicial diversity in the two jurisdictions.
Raana came to study in New Zealand, having obtained both an undergraduate and Masters degree in Law in Iran. Raana had no direct connection with New Zealand but was drawn to studying in a country with a very different legal system to her own.
Raana’s interest in the matter of judiciary diversity was significantly influenced by her direct experience of growing up in Iran where the judiciary is overseen by the President of the Judiciary who can only be a man. The President is accountable to the Supreme Leader of Iran. Raana’s father is a lawyer, and as a result her childhood was filled with dynamic legal discussion, including about judges and decision making. There was an expectation she would go on to study law.
Following completion of her undergraduate degree, Raana elected to remain at University and continue her studies. As she noted to me during our interview, she really enjoys academic research and this was the next logical step. For her Master’s research she decided to focus on the role of the President of the Judiciary and the issue of judicial accountability. Raana’s research considered whether better accountability could be achieved through a judicial council and reviewing other judicial systems from both common law and civil law systems. She also looked at the universal conundrum of accountability versus independence.
One of her observations from this research was the common law systems she looked at often had less diversity than some of the civil law systems in which the judicial pathway often follows specialised graduate courses where you train to become a judge, rather than being appointed. Raana notes this allows a person to make a conscious decision to follow a judicial career pathway with clearly understood criteria and a reasonable assurance that appointment will follow completion of the requisite courses. In contrast, appointment processes have no such guarantees and are often not well understood and may have other issues which impact the ability to ensure diversity.
Another important reflection from Raana’s initial research, was diversity within the judiciary might be an essential element in improving judicial accountability and, perhaps, in a way which more effectively allows for the continued maintenance of judicial independence.
Raana’s PhD studies at the University of Canterbury continue the theme of gender diversity, this time within the New Zealand and Victorian judicial systems. However she was curious to look more deeply into this issue by analysing legal systems in which judges are appointed from the legal profession, as opposed to those jurisdictions in which judges completed specialised graduate courses. She also wanted to consider the ability to improve diversity of those appointed generally.
While her final research is yet to be completed, Raana was able to provide insight into some of her observations to date. For a start, Raana says the State of Victoria has better judicial gender diversity statistics than New Zealand, although she is quick to emphasise there is a fundamental difference between gender diversity and diversity per se. She also observes care needs to be taken when simply thinking about a system focusing only on having equal gender splits. “Consideration of what diversity means and looks like goes well beyond that,” Raana explains.
For example, Raana delved into the statistics of women appointed to judicial roles in Victoria and specifically what professional group they came from. They were often from the Victorian Bar. To be a barrister in Victoria requires a significant financial commitment to complete the training and enter chambers. Therefore those women who successfully become barristers tend to be from higher income backgrounds and/or will have support in some way in order to complete the pre-requisites for being admitted to the Victorian Bar and then enter a Chambers. The same factors apply to men. Consequently these factors inevitably impact the degree to which there is meaningful diversity of socioeconomic backgrounds, practice areas and experience across the Victorian bar. It then follows, as Ranna observes, despite the Victorian judiciary having better gender balance than New Zealand, you cannot say it is truly diverse. It does not include a range of people who are very different from each other. Raana says there needs to be an intersectional perspective. In her view, in addition to improving diversity of the legal profession generally, it requires greater transparency of the judicial appointment criteria.
Turning then to practical ways in which diversity can be improved, and specifically the transparency of the judicial appointment criteria, Raana is clear that one of the most fundamental tools to improving judicial diversity is embedding an obligation to take diversity into account in the legislation governing judicial appointments. This obligation would take the form of a requirement that the appointing body/individual must take account of diversity when making judicial appointments, together with guidelines as to what diversity actually means and looks like. Raana acknowledges this requires careful thought and is not necessarily a straightforward exercise. However, one area Raana is particularly passionate about is diversity of practice background. She observes both Victoria and New Zealand statistics reflect an overwhelming weighting toward litigation specialists being appointed which she accepts is not surprising. However, when Raana reflects on the skills necessary to be a judge she asks why can an academic not become a judge? The skills required to be an effective judge are often quite different to the skills needed to be a litigator. She muses, “Isn’t the more important approach to consider the various other qualities and skills of the person being appointed?”
Reflecting on New Zealand, Raana acknowledges our present Attorney-General and Chief Justice have both been open about a need for focussed consideration of diversity in judicial appointments. They are clearly committed to this cause, and, to an extent, we can see this in practice in judicial appointments over the last three or so years. However, as Raana emphasises, this approach is not a given. “What are the safeguards for this approach in the future?” she asks. Her view is that legislation requiring consideration of the need and obligation for diversity is an important part of the matrix.
Raana stresses this is only part of the picture. Another challenge is how to ensure there is diversity of those considered for judicial appointment, which reinforces the question she posed about those with a background in legal academia being appointed as judges. As noted, Raana has looked at various legal systems including those in which judges are appointed after completing a specialised judicial course. There are examples of these systems in France and Nigeria. Interestingly, Raana notes in those systems the majority of judges are women. Raana reflects this may have something to do with the fact judges in these systems, relative to other professions, are not particularly well paid. She is, therefore, cautious about whether the higher number of women holding judicial office in those systems is a true reflection of gender diversity in action.
And this leads to Raana sounding a note of caution about how you achieve diversity. In particular, she is wary about the use of bare numbers to ensure diversity (for example a 50:50 ratio). The same applies to a fixed list of the skills needed to be a judge. These approaches can be blunt tools and limit the pool of applicants. Raana’s research also considers the issues that may underscore who gets a say in the appointment process and what can happen when they come from the existing judicial demographic.
This is an issue raised by UK barrister, Dinah Rose KC, commenting on recent appointments to the UK Supreme Court:
Raana considers networking is a significant factor involved in the judicial selection processes in the various systems she has looked at. While judicial criteria and selection processes are often published, there are unwritten but critically important factors applicants need to know about. Having a judge as a mentor or connections with senior practitioners and those involved in the appointing process will allow you to better tailor your application and approach, which is more likely to result in appointment. Some of Raana’s interviews with judges have indicated for several of them, a mentor was key. However, as Raana notes, women and people from different backgrounds can struggle with networking.
As part of her research, Raana looked at the background of all the District Court, High Court, Court of Appeal and Supreme Court judges. While her thesis is yet to be published, she does consider we need to have an honest look at the way we identify applicants for judicial office. "If we are to improve diversity, we need to be realistic. Change will require finding ways to encourage practitioners from different backgrounds to consider a career as a judge and to support them in putting themselves forward for selection and to ensure when they apply, they can engage fully in that process".
Given the observations and reflections Raana was able to share with me during our interview, her research might well provide a foundation for developing practical and meaningful systems to improve judicial diversity here in New Zealand. This will ultimately enhance and strengthen our legal system.
I will be doing a follow up article in the next issue of At the Bar covering more specifically Raana’s legal education in Iran and her pathway to the law.
* Genevieve Haszard is a barrister from Kate Sheppard Chambers. She has specialist expertise in appeals, both civil and criminal, the Coroners court and Relationship Property. Genevieve is also on the Royal Commission Abuse in Care Legal Assistance Panel. For more information: https://genevievehaszard.com/
Footnote
1“UK Supreme Court faces diversity backlash following latest appointees” Micah Guiao, The Lawyer Magazine, NZ Lawyer, 19 August 2022
