This is the reply to my submission to the Women's Access to Justice Project, written by Joanne Morris, Commissioner. My comments are added below (click here).
LAW COMMISSION : TE AKA MATUA O TE TURE
1 May 1996
Dear Mr Birks
Thank you for your submission of 26 March 1996, a further copy of which was sent to me by Jill White MP.
In response to your concerns about the Women's Access to Justice project, I note that the focus of the project is not on substantive laws (such as custody, matrimonial property or child support laws) but on the legal services which enable the substantive law to be invoked. Thus the focus of the project is upon lawyers' and court services: their availability and responsiveness to women, especially in civil matters. Since women share with men many of the factors which impair or prevent access to lawyers and the courts (eg, low income, lack of information), the project's research and recommendations will undoubtedly also assist men's access to legal services.
The Commission believes that the effects of gender create a more marked set of difficulties for women seeking to access legal services than they do for men. For example, women are more vulnerable to poverty or low income because of their gender and, having not been participants in the legal system until relatively recently, are more likely to find its manner and style alien and offputting. Therefore by focusing upon women's access to legal services, a "view from the bottom" is obtained, the full implications of which may otherwise be overlooked in a more general study purporting to focus on People's Access to Justice.
In the course of the project, which has been advertised publicly, we have received submissions from men who are users of the legal system and many more from male lawyers, judges and others involved in the administration of justice. Our meetings with those who work within the legal system, at which the project and ideas for improving access to legal services are discussed, are invariably attended by a majority of men reflecting the composition of the legal profession. You suggest that as the issues the project is concerned with arise between women and men, discussion with both women and men is necessary. Because the project focuses on legal services, the relevant issues arise between women users of the legal system and the men and women responsible for the provision of those services. I can assure you that the promotion of discussion with and between both those groups is a vital part of the project.
It is not the case that the project is aiming to promote better access to legal services only for women. Rather, its aim is to promote better access for all but by means which are sensitive to women's particular difficulties with the current system. Because of its focus upon women, the project does not and has never purported to stand alone: it is part of a broader initiative to make the legal system more accessible and userfriendly. That broader initiative is supported by government agencies responsible for the administration of justice and by sectors, at least, of the legal profession. (You will be aware that the profession is responsible for many matters affecting the standard of legal services' delivery.) Those agencies, and the profession, have welcomed the Commission's focus upon women's access to justice.
Yours sincerely
Joanne Morris
Commissioner
1) Joanne Morris appears to dismiss my objections to the nature of the project on the basis that, to quote her letter, "the focus of the project is not on substantive laws (such as custody, matrimonial property or child support laws) but on the legal services which enable the substantive law to be invoked".
To quote two extracts from the terms of reference of the project (see here for full text):
i) "Priority will be placed on examining the impact of laws........"
ii) "The Law Commission ... will report to the Minister of Justice concerning: ... specific law reforms ... "
Her letter appears to be a direct contradiction of this.
2) Joanne Morris also claims that women, "having not been participants in the legal system until relatively recently, are more likely to find its manner and style alien and offputting."
1994 Ministry of Justice publication Conviction and Sentencing of Offenders in New Zealand: 1985 to 1994 contains figures on number of cases resulting in a conviction, all offences except traffic offences (table 2.13):
Male - 51,554
Female - 11,212
The 15+ population of New Zealand according to Department of Statistics figures is:
Male - 1,346,400
Female - 1,415,700
So cases equal approx. 1 in 27 of the male population
Of the male figures, 18,741 were Maori and 23,258 were European
Department of Statistics data suggest about 10% of the population is Maori, the others are mainly European, so we have a convictions:population ratio of about 1:7 for Maori and about 1:50 for European (2%)
Going by age (table 2.14 of the Department of Justice publication), of the 48,050 male cases where age is known, 9,644 are 14-19 and 14,009 are 20-24. I.e. nearly half are under 25.
So in a year, perhaps 2% of the male European population has a case resulting in a conviction (ignoring the possibility of one person having several cases). Perhaps half of these are men under 25. Their experience is supposed to result in all European men, themselves included, not finding the legal system "alien and off-putting". I would have thought that it would do the opposite for them, and nothing for other men. We should also add that contact with the legal system does not necessarily mean conviction. There are those who were wronged and seek redress, many of whom are women, there are witnesses, many of whom are women, etc..
I also do not see how a conviction for a drug offence or for shoplifting, for example, would help anyone in a custody application.
The following data from the Massey University annual publication Graduate Destinations for the relevant years refer to Massey Batchelor of Social Work graduates for 1992-1994.
1992 - M=3, F=28
1993 - M=6, F=32
1994 - M=3, F=35
1993 figures also show that the mean age for the men was 35, and for the women was 26, but the mean salaries of those who were employed at the time of the survey was $26,580 for the men and $28,379 for the women. Women are also more likely to be clients.
Also, from: Maxwell G M and Robertson J P (1993) Moving Apart: A Study of the Role of Family Cour5t Counselling Services, Department of Justice, page 87, "All but three of the 33 counselling co-ordinators during the first half of 1989 were women".
It may therefore be the case that that women have far more contact with important aspects of the system.
We should also note that the legal problems in the area of family law can be quite different for men compared to women due to the allocation of custody, liability for child support, etc.. Women's experiences may not be very relevant for identifying men's problems.
3) These matters were taken up further with Jill White, Labour MP for Manawatu. The following is an extract from a letter I sent her on 21 May 1996 following a discussion on 20 May:
The second point is on the impact of the Project. As you said, it is now too late for there to be a simultaneous "Men's Access to Justice" project. I think we agreed that men do not necessarily have any more familiarity than women have with the Family Court system prior to separation. Given the gender patterns for award of custody, liability for child support, contributions in terms of paid and unpaid work, and possible obligations in any new relationships, the issues are gender-specific in impact. Nevertheless, policy changes to affect women will inevitably affect men. There is a very real danger that men's perspective, although relevant, will be inadequately researched. The Project is to make recommendations which will impact on law and legal systems.
These are the sort of concerns I have with the gender-specific research and input into policy. I specified them in my submission to the Law Commission and still do not think that they have been adequately addressed.
We have a parallel with the "Hitting Home" study, which we also briefly mentioned. It looked only at men's violence. We now have the Domestic Violence Act, but have yet to even see the start of a study into women's violence. Are we to assume that women's violence is the same as men's, or should a different approach be taken? Does the law, based on a study of men's violence, adequately handle this issue? At a more basic level, should women's violence be discounted because it is believed that they do less damage to men, and if so, how does that protect children from the very real damage that women, being larger and stronger, can inflict on them?
It is as a result of the above concerns that I have set up an "Unofficial Men's Access to Justice Project" on these web pages (see in the menu here) and invite submissions from or about men who have been unfairly treated by the court system. When the results of the Women's Access to Justice Project are used to support law changes, there may then at least be some response to balance up this one-sided approach.
Stuart Birks
11 June, 1996