18 September 2008, 6.10 pm

May I thank the Wellington Women Lawyers for the invitation to deliver the Inaugural Shirley Smith Lecture. I regard it as a privilege to be asked to speak in honour of such a distinguished woman, lawyer and citizen. It is difficult to describe how important her example was to so many women entering the legal profession in the 1960s. In 1966, when she was practising law in Wellington, I was one of six young women who entered law school in Auckland. While I did not immediately register the significance of such a large intake of women, (6 out of about 200) it was not long before it had been carefully explained to me that it was highly unusual for women to embark on such a course of study. The comment was also made that if I was lucky enough to get a job, it was such a pity that it would be only in a government department. As I had chosen the study of law to get a job it sounded rather good to me. I totally missed the implied put down, which displayed a provincial naivety that has stood me in good stead for much of my life.

Shirley Smith of course not only had her own practice but she appeared in court, almost unheard of at the time. I recall my first appearance in the then Supreme Court and being kindly counselled that I should try to get in the front row (it was divorce day) because it was well known women’s voices do not carry. I thought I am sure Shirley Smith would have been heard. Of course, given my current role the thought of my voice not being heard is somewhat ironic.

While role model was not a phrase much used then, she epitomised the hope and possibility of women practising in all facets of the law. She not only practised law but also she challenged the profession and the legal system to recognise the rights of women and those who lacked access to law. It is hard to describe the importance of women such as Shirley Smith not only to women entering the legal profession but to the development of our legal system. She was one of those warrior lawyers who struggle to ensure everyone got a fair hearing when pursuing or defending their legal rights.

I confess to undergoing a struggle myself when preparing this lecture. When thinking about what I wanted to say I realised I had several competing ideas that needed to be melded into a coherent presentation. There are two matters however that have recurred for me throughout my legal and political life. They are the importance of the rights of women being recognised legally and politically, and secondly the fundamental importance of the principles of natural justice being adhered to in all circumstances. For me these two matters underpin the legitimacy of our democratic system of government.

I am not sure I have succeeded in the lecture in developing a coherent argument that incorporates these issues. It may therefore be more accurate to describe what follows as some reflections on 30 years of struggle in pursuit of the elusive goal of equality for women. After being a somewhat naïve activist law student in the 1960s, I pursued a career through the teaching and the practice of law, while maintaining a political activism until I entered Parliament in 1999 and became a full time politician. I have been incredibly fortunate to work in so many different sites of struggle for women’s rights and to work with so many women and men who shared the same aspirations. In this journey I have learnt a great deal and not surprisingly developed a few firm views. One of those views is the fundamental importance of the rule of law and the legal system to our democratic political process.

Like most of us I have taken for granted that I live in a country where the rule of law and democratic representative government are taken as the norm. Recently however I have developed an increasing concern that all may not share my confidence. I am beginning to see an insidious undermining of those institutions that underpin our way of life. I do not believe this is due to any great conspiracy but more to the fact that we live in an age when the pre-eminence of the economy is shaping our relationship to institutions such as the law and government. The value of everything is coming to be assessed more in economic terms than any other. The recent book of Robert Reich Supercapitalism (2008) is an excellent analysis of this trend and a plea for a re-assertion of the importance of democratic government for the well being of society as a whole.

I want to begin this talk then by stating that it was of some concern when I read the recent Research New Zealand polling that showed 62% of New Zealanders do not have full trust and confidence in the justice system. [1]   On one level this result was not a surprise because there is little tolerance from a growing section of the community for due process being accorded to those who fall foul of the criminal law. A quick scan of media headline would also convince you that we live in an increasingly lawless society.

The fact that the statistics show a different picture quickly becomes irrelevant in the court of public opinion. [2]   This is not surprising given that people do fear for their safety and it is a fundamental obligation of any state to ensure that security. Not to deliver law and order will lead to a breakdown in society where citizens will take the law into their own hands and violence becomes the norm. There are too many examples of this happening in other countries for us not to understand the risks.

I do not believe New Zealand is anywhere close to that state of affairs. The researchers themselves stressed that ‘full trust and confidence’ does not mean no confidence. The survey did show however that 75% of respondents thought criminal sentences were too soft and 48% supported capital punishment. The lobby groups who advocate these policies are well organised and politically and media astute. It is their right to put their views before the community. There is no obligation however for the media to report the facts and explore the consequences of such policies. That is why strong advocates are required to constantly explain the importance of the rule of law and the fact it is not a vague notion but that it provides the support of all citizens’ human rights. There has been a tendency to equate human rights with political correctness. Yet those who pontificate about political correctness are the beneficiaries of adherence to a human rights regime.

Although the survey related only to the criminal law, I have wondered how much confidence people have in our civil law system. Observing the struggle for compensation over leaky building disputes and the recent collapse of finance companies, I sense a growing concern about the capacity of the legal system to deliver, not only the remedy they seek, but the process to pursue a remedy. I use the term legal system here to include not only the law, but the courts, the bureaucracy and the profession. I want to return later to the problems arising out of the conflict between the need for due process and the need for justice to be timely and efficient.

I wish now however to discuss some of the issues and questions that arose when in the 1970s, 1980s and 1990s women challenged the legal and political systems to recognise and include them. [3]   I see this struggle as an example of how change is possible through participation in the democratic process, even if it is very slow at times. I also came to realise as I wrote this talk that equality for women is only possible through a viable active democratic system of government hence my advocacy for it to be supported.

From time to time in recent history movements have arisen to promote the equality of women. New Zealand was the beneficiary of such a movement in the 1890s when it resulted in women being given the right to vote. Another such time was the 1960s and 1970s when the post World War Two generation of women asserted their right to equality. It was an important time for so many women who experienced their life opportunities being curtailed simply because they had been born a woman. It seemed so fundamentally unfair and undemocratic that for some us there seemed no option but to try and change the system that supported this discrimination.

What strikes me when I reflect on my involvement in the campaigns for women’s rights in the 1970s is that my focus was on changing the law to provide women with rights and remedies. I was aware not all feminists pursued a strategy of working within the system because their analysis demonstrated the fundamental social, economic and cultural factors that denied women full equality. I had much sympathy with this analysis and still do. It seemed to me however that there was an obligation to at least try to work through the system, which for me meant the legal and political system, until it was obvious no progress could be made. In other words we were testing the democratic process to see if it could deliver true equality for women.

Whether it has or has not delivered is a serious question that deserves consideration. The answer for individual women will depend on their individual life experience to some extent. For me looking at the changes over the past 30 years, I think it is fair to say that real progress has been made but we still have a way to go. I believe that there has been progress in the formal legal recognition of the rights of women, but that in reality women are now squarely facing the underlying structural barriers to full equality. It is fair to note that from the outset we were aware legal change was not the total answer. It had to be supported by an attitudinal change, and more importantly social and economic policies to ensure the law was implemented as intended.

The agenda for change was set out in the 1975 Select Committee Report on the Role of Women in New Zealand Society. It identified equal employment opportunity, matrimonial property, access to finance, the rape laws, and contraception sterilisation and abortion as arenas for change. These were the issues identified by women and their organizations such as the Campaign Against Discrimination. Interestingly violence experienced by women was not identified. I suspect this was because the issue was still too personal and difficult to articulate in the Select Committee process.

The Select Committee provided the first opportunity for women to learn about political lobbying. We learnt to prepare and to present submissions to Parliament. Much of the research for those submissions was provided by the work of the Society for the Research on Women. It played a significant role in preparing the rational reasoned arguments for those of us who then took them into the social and political marketplace. It was during this time we formed the Women and the Law Research Foundation that provided information, research and assisted women with accessing the political process to lobby for change. We lobbied, we argued, we demonstrated and eventually we realised we needed to be where the decisions were made – the Parliament, the courts, the practices, the classrooms. Good argument and research alone did not guarantee action.

The campaigns of the 1960s and 1970s were about creating the community awareness and acceptance of the need for change. The United Women’s Conventions of the 1970s played a significant role. The Conventions held over a decade in different cities gave the opportunity for women to come together to share their experiences and to develop a programme and a strategy for change. It must be noted there were many differences expressed passionately and not always rationally.

I recall being asked to speak at the first Convention on women and employment and to convene workshops on women and the law. I had no idea of the significance of that gathering or how challenging it would be for me personally. For example I vividly recall being confronted by two women demanding to know whose rights should prevail on the breakdown of a marriage – the first or the second wife. Nothing in law school had prepared me to answer this question. The experience however provoked me to look at matrimonial property rights in a new way.

The Conventions were also about women learning how the legal and political system worked. On reflection I see that all this activity displayed a confidence in our democratic system that it would eventually produce the justice sought. We understood that societal change and political struggle had to precede legal change. We were prepared to put the work in to affect that change. To be honest however, I doubt any of us thought it would take over 30 years of action to achieve what we have today.

Much of the effectiveness of the campaigns relied on an analysis of the precise nature of the issue and the most effective means for addressing it. For example, there could be no solution to unequal pay for women unless it was accepted that pay rates were determined within the context of the then industrial conciliation and arbitration system. A law change alone would therefore affect little unless union and employer advocates were prepared to ensure the law was enforced. Even with those conditions, it became obvious that the real problem was that the work women undertook was undervalued in the economy. Further the labour market was unprepared to cope with the reality of the rhythm of women’s working lives, in particular their child care responsibilities. These are the underlying structural issues that still remain today.

The struggle to integrate pay equity into the labour market failed in the face of the neo-liberal economic policies of the 1990s. The failure of the pay equity initiatives demonstrated that women were not central to the economic system. We had always been a dispensable surplus workforce and there was no support to change that in the 1990s. This meant that a new strategy had to be developed which did not attack the issue of value head-on but which addressed the factors that contributed to the undervaluing of women’s work. These factors most often related to the fact that women’s life experience is different from that of men in some fundamental respects.

The struggle has been to get not only the law to recognise that equality before the law requires an acknowledgement of difference, but then to get those who interpret or apply the law to recognise the equality of difference. Equal employment opportunity, paid parental leave, flexible working hours, the right to breast feed at work, work/life balance were amongst the policies that were now pursued in law and practice.

I have a concern that these policies have had some measure of success because we have had a policy of full employment and not because there is an acceptance of the rights of women’s difference. In other words the conditions were right because there was a need for women’s labour. The true test of these policies will lie in whether they survive a period of high unemployment. And this will depend on whether the economic necessity is supported by a fundamental shift in social and cultural attitudes.

When devising the strategy for employment equity, I recognised the legal system was not equipped to deal with systemic discrimination. It was unrealistic to expect the courts to deliver a change of this nature. The courts were best equipped to deal with individual disputes, for example, who was entitled to what property on the breakdown of a marriage. I must note however when attempts were made to change the law to ensure women’s non-financial contribution to matrimonial property was recognised, both the bureaucracy and the courts were very reluctant again to acknowledge the value of women’s work.

The struggle around women’s matrimonial property rights has clearly identified that the legal system is still much more comfortable in enforcing financial value, normally associated with the exchange of money and not non-financial services. The fact that men have been associated with financial exchanges and women with non-financial service exchange has lead to the development of the law through the male experience. What women have been seeking again is that women’s experience should be equally recognised by the law as of value. In other words, for the law to be truly equal it must acknowledge the difference of women. It is the social and cultural imbedding of the notion of traditional roles for men and women that has made political and legal change so difficult.

In my legal policy work it has also become obvious that the courts should not be viewed as instruments of social change. Their role is to enforce the law as enacted in legislation. Through the interpretation of the law, a common law is created that provides guidance to individuals who seek to know and enforce their legal rights and remedies. As it was unrealistic to expect the courts to deliver gender equality, it was important that those of us working on legal change in the 1970s devised a new legal instrument to redress systemic discrimination.

The Human Rights Commission emerged as the institution to achieve this goal. It was not the first choice however. We had examined overseas statutory models and judged that Australia had the best legislation to address sex discrimination. We also sought an institution that would provide an individual remedy while also addressing structural systemic discrimination against women. We knew it was impossible to mount a class action in the courts so were trying to find a way where the new institution would accommodate such an approach.

A change of government in 1975 ensured there was no body to deal specifically with sex discrimination. The notion of human rights was used to neutralise the demands of women at the time. The Commission had jurisdiction over discrimination on the grounds of sex, marital status, religious and ethical belief – a limited notion of human rights. The fact that the Commission was reluctant to pursue sex and marital status discrimination against women and concentrated on religious discrimination meant it lost the confidence of many women for some years. I confess that after my first meeting with the Commission, I wondered if the struggle was worth it.

There is not time to traverse the history of the Commission except to note that it was an important first step from which we were able over a period of time to build an institutional base that directly addressed the issue of discrimination against women. It should be acknowledged however that it was the recognition of women’s rights as being human rights in the 1990s that gave new energy to the campaign for women’s rights. Participation in international conferences such as the Beijing International Women’s Conference enabled the campaign for women’s rights to be sustained during a particularly bleak period. And the Human Rights Commission today comes close to the model that was sought in the 1970s, in that it not only provides for the redress of individual complaints but pursues an active campaign to protect and advance women’s rights in the context of human rights. It is not so easy now to isolate and ignore the rights of women.

Time was lost in the 1970s and 1980s however though experience was gained. It became clear to me at that time that I needed more experience in legal institutional design if the right formula could be found to provide a real remedy for women. It was why I fought so strongly for issues relating to maternity leave, that arose from the Maternity Leave and Employment Protection Act 1978, being heard in the then Industrial Court. It seemed that that court had a greater understanding of the realities of the workplace and therefore may have a greater chance of enforcing the limited rights they gained under that Act. For me also that experience taught me the power and influence of the bureaucracy and how difficult it was for women outside the public service and politics to have any influence on the form and shape of legislation. I learnt that the devil really does lie in the detail.

It was during this period of the 1980s I committed to finding a pathway through the political process. One of the reasons for the commitment was a realisation that single issue lobby groups and organizations took a great deal of energy and were difficult to sustain. There was little financial support and too few people to do the work. Working for women through the Labour Party seemed a logical extension of the NGO work in which I had been involved. I, and others, had been part of a strategy to develop a women’s equality policy and also to promote women into political decision-making positions.

The policy work resulted in the 1984 Women’s Equality Policy of the Labour Party set out what in effect became the agenda for the next 20 years. It was during this period that I also learnt to live with contradiction in a real sense. While the government was pursuing a neo-liberal agenda we were pursuing an equality agenda. There is insufficient time to relate this story but the conclusion may be that you should never give up however difficult the task may be at the time. It also had confirmed for me that women had to be where decisions were made because their voice and vote counted.

It is true that women have learnt from experience and taken advantage of the opportunities that were not easily available to us 30 years ago. Women have entered the paid workforce in increasing numbers and are facing the daily struggle of balancing our paid and unpaid work in a world that in truth has changed little to accommodate this major social change. It is therefore time to reflect on exactly how much progress has been made and where do we go from here.

The reality is that while there is a perception that women have ‘made it’ the statistics tell a different story. The power of perception to undermine reality should never be underestimated. A good example of this is the way we are good at claiming ‘firsts’ into the resolution of the problem.

New Zealand has always been proud of being the first country to give women the right to vote. We were not the first however to give women the right to represent themselves in Parliament. That first belongs to Finland. It was also not until 1933 that the first woman Elizabeth McCombs was elected to Parliament, and it was not until the mid 1990s that women in any numbers were elected to Parliament – a hundred years after women got the vote. [4]  

Ethel Benjamin was our first woman admitted to the legal profession in 1897. [5]   Yet it took until the 1970s before women in any numbers started to enter the practice of law. [6]   Women were first appointed to the bench in 1975 with Augusta Wallace’s appointment to the District Court and 18 years later in 1993 Silvia Cartwright was appointed to the High Court. Both appointments were considered exceptional and coincided with International Women’s Year in 1975 and the Suffrage Centennial Year in 1993. I am pleased to say the events based approach to judicial appointment for women has not continued. It is obvious however there has been no floodgates principle operating as far as women entering the legal profession or the judiciary.

What is the position today? The Human Rights Commission has recently published a census of women’s participation in New Zealand society, including participation in the law. [7]   Women currently comprise 62% of the admissions to the profession but comprise only 41% of the legal profession. Only 16.8% are partners in large law firms, and 19.34% of the partners in firms of all sizes. 35% of barrister sole are women and of the 90 practising Queens Counsel, 11 are women. Women comprise 25.76% of judges with the highest percentage being appointed to the Family Court.

So what do these numbers tell us? It is obvious that some progress has been made over the past 110 years but that women are still a minority at all levels of the profession and the judiciary. Is this a cause for concern may be the next question? I would argue that it is. Apart from the waste of human potential and sense of loss of well being, the country suffers from the loss of talent and skills that women could contribute through their employment. I sometimes wonder when I hear the critiques of why New Zealand has such low productivity why there is no recognition of the harmful effects of discriminatory management practices.

The new challenge for women in legal practice would appear to lie in the current management practices of firms and appointment practices rather than changes to the law. In 2005 the New Zealand Law Society conducted a survey that sought to identify the key concerns of women practitioners. [8]   The four most significant concerns were reported as hours of work, professional support, advancement and salary. Men also expressed a concern about hours of work and salary but they did not have the same concerns around advancement or professional support. The Chief Justice in a recent address to the Australian Women Lawyers Conference discusses the current legal culture that inhibits the advancement of women in legal practice and the judiciary. [9]   She notes there is a reluctance to accommodate the needs of women and men who want different work patterns and styles. Even when there is an accommodation there remains a stigma attached to those who seek to be different.

Unfortunately there is another management practice that has failed to assist women and that is the notion of merit being the basis for appointment or advancement. I recall the debates around whether or not New Zealand should adopt affirmative action strategies in the 1970s and 1980s to redress the discrimination experienced by women. Those strategies were rejected and reliance was placed on a merit approach to ensure women were treated fairly. It was felt that the merit approach was fairer and would be more culturally acceptable. The problem with merit is that it is in the eye of the beholder and unless an incredibly professional process is undertaken, merit cannot be relied on to produce a fair outcome. Where there is a strong prevailing notion of what are the ‘right’ qualities for a position, it is difficult to introduce any change. I found this was particularly the case with judicial appointments and appointments to Queens Counsel.

I believe there is a fundamental clash between much of the current legal culture and the reality of women’s lives. I would note however there are a number of men who are also experiencing a similar frustration at the resistance to change. The question what is to be done? I do not have an answer though I hope to continue my work on this issue. What I do sense however is that there is a real shift within the community towards demanding a greater participation in the decisions that affect us. We are searching for new ways of organising our lives and governing ourselves. Women are seeking ways of work that enable a better balance in their lives. There is a greater sharing of roles between men and women. These initiatives are still taking place within the existing system however. There is still no real perceived need to radically change the way we do things. Difference is tolerated as long as it does not fundamentally interfere with existing practices.

I want to conclude with the thought that it is imperative that the changes within the society are reflected within the legal system. I note the new practices introduced by the Law Society to better recognise the needs of clients to be well informed, and to better supervise the quality of the provision of legal services. I also note attempts to ensure judicial and quasi-judicial bodies to be more representative of the community they serve. These are all important measures. I would argue however that there is a need to review the means by which we resolve disputes and administer the justice system. It is not just a question of more money for legal aid, better court facilitates and more judges though I understand such measures would undoubtedly be of assistance.

It is a question of ensuring that due process and the principles of natural justice that are the foundations of the rule of law are designed to deliver justice in a timely manner and a way that meets the needs of those who seek justice. The increasing procedural complexity of our litigation processes is in danger of strangling the life out of this form of dispute resolution for all but the rich. I sometimes wonder if we have become so risk adverse that we are not really serving our clients. I am very much aware however of the financial risks for practitioners of not covering all contingencies. Just as I am aware that issues involving the Bill of Rights require exhaustive testing in the courts. The question may be does every dispute require this attention. I am not suggesting there are easy answers however.

It is time to think creatively about how the system can better serve the needs of people so we can ensure any future surveys convey higher confidence levels in the legal system. I know such means are available, as I have had the opportunity when I was a Minister to test them in some areas such as employment, building, and human rights disputes processes. [10]   Greater use of both mediation and adjudication should be explored. Often what is required is an experienced practitioner to weigh the arguments and work with the parties to a solution that meets their needs. Of course this will not work in all cases and access to the courts should never be denied. Some clients require the full litigation for legal or personal reasons. There should be choices however.

There is not time to pursue these matters in this lecture but I am sure Shirley Smith would have had a great deal to say about them. She believed passionately in the rule of law, as I do and I am sure you all do also. The continuance of the rule of law will be one of the main challenges for us in the future. Our democratic system of government depends on the maintenance of confidence in the rule of law and our legal system. As a profession we have a particular responsibility in this task. We will be unable to meet that challenge unless as a profession and a judiciary we are inclusive and representative of our community and that is why it is vital women can fully participate at all levels and in all facets of the legal system.

Thank you.