The New Zealand Bar Association (NZBA) 2024 Gender Ratio Report, released earlier this month, found that women remain underrepresented in our Higher Courts. Bankside Barrister Kelly Quinn KC and Nura Taefi KC of Shortland Chambers prepared the report. We speak with Kelly Quinn KC about the key takeaways, his response to some of the commentary since it was published, and what in his opinion can be done to improve the underrepresentation of women in the Higher Courts.
Could you share more context on this research and the reasons behind its initiation?
The research was initiated several years back in response to concerns that, despite the growing number of women in the profession, their presence as advocates in the Higher Courts remained limited.
NZBA had published similar surveys in 2018 and 2021, analysing the gender ratio of counsel in specifically the Court of Appeal and the Supreme Court. (These courts are the ones in which the most experienced and senior counsel are likely to appear, and where cases might be considered “leading” or important, for the purposes of supporting an application for appointment to the inner bar.) The first such report covered the period 2012 to 2017, and the second report added data for 2018 and 2019.
This 2024 report covers the period from 2020 to 2023, and thus enables a review of data for a 12 year period in total.
What are the key takeaways from the report?
It is well-known now that in New Zealand many more women than men are graduating with law degrees. During the 12 year period now able to be considered, from 2012 to 2023, the percentage of women in the profession increased from 45% to 55%.
Despite this, the number of women appearing in the Higher Courts appears to have held steady, and at a disappointingly low level. Throughout that period, the percentage of women appearing as lead counsel in the Court of Appeal has been an average of only 28%, and the data is similar for appearances in the Supreme Court – an average of only 25% over that twelve-year period.
The data also showed that women are less frequently instructed in civil matters and are less likely to represent the appellant in the Higher Courts.
Why is it important to track this kind of data?
It’s important for several reasons. The first is that without conducting objective research of this kind, people are left to fall back on their “sense” of how things are going, or their own limited experience. There are members of the profession who were openly skeptical that the research would disclose much of a disparity at all. Some claimed to have a sense that this issue was improving, but it turns out that may have been little more than wishful thinking. The numbers themselves do not lie, and that is the power of the report.
The question of gender balance is at heart a matter of fairness. The legal profession, perhaps above all others, ought to be concerned with achieving fairness. Tracking this data enables us to check the health of the profession in this regard. It also complements the body of work already undertaken by the Law Society in similar areas, such as tracking the proportion of women reaching leadership roles in law firms and in-house legal teams.
Improving the gender balance of counsel appearing in the courts has been the focus of several initiatives in recent years (as discussed in the report). The only sensible way to measure the impact of such initiatives is to track the data, and the data itself may give clues as to what does or does not work in terms of improving matters.
Since the report was published, there has been discussion about why female counsel are underrepresented in our Higher Courts. In your view, what are some of the key factors contributing to this underrepresentation?
It is difficult to go past old-fashioned gender bias as the principal culprit. By thought processes that are both conscious and unconscious, many people continue to think that they will be best served in Court by a male advocate.
One suspects too that well-meaning attempts to right the imbalance are doomed to fail if they are not sufficiently “direct”. What I have in mind here is the common request by clients, or colleagues, for a recommendation as to who might be a good choice to act on a matter. The response of suggesting (for example) two female counsel and one male counsel might be thought to be promoting gender equality, but in reality it may well be insufficient to drive any meaningful change in this area. It would appear that the decision makers are still predominantly choosing men.
No doubt there are some readers who will reply that clients have the right to choose who they are represented by. That is true, but it overlooks the vast majority of cases in which clients have no or little experience of litigation, let alone any idea of who might be best-placed to represent their interests in Court. Such clients are more or less told by their lawyers who should run the case. It is a rare client who will disregard a recommendation from their own lawyer.
There has been commentary around the importance that there is diversity in the Higher Courts. What is your perspective on this?
My view is that first and foremost it is a question of fairness. In a profession which is now predominantly female, it is not acceptable that women lead only 25% of cases heard in the Supreme Court (and only 16% if Crown Law is excluded).
Arguing a case (or multiple cases) in the Higher Courts is rightly regarded by most advocates as an important measure of professional achievement. It is certainly not the only such measure, but it is important nonetheless, and the reality is that women are being excluded.
Not long before Covid struck, there had been several initiatives introduced to address the gender imbalance in the Higher Courts. On the face of it, these initiatives (discussed in the report) have not made a great deal of measurable difference, although there is a suspicion that Covid caused people to take their eye off the ball in this particular area. The initiatives were introduced for very good reason, and there needs to be renewed focus on them, and how best to achieve the change originally (and still) desired.
My response has focussed on gender alone, but there are wider issues of diversity at play here as well. And essentially, the same considerations apply. Genevieve Haszard, who co-chairs the Bar Association’s Diversity and Inclusion Committee, spoke about these recently in an interview with RNZ.
You spoke about the data giving clues as to what does or does not work in terms of improving the underrepresentation of women in our Higher Courts. What, do you think, might improve the gender imbalance?
In the report, you will see that Nura and I discuss what is called the “Crown Law Effect”. The Crown Law Office based in Wellington, under the leadership of the Solicitor General and the Deputy Solicitors General, is responsible for conducting litigation on behalf of the Crown. That includes, for example, defending the many criminal appeals that are brought as of right before the Court of Appeal, and which comprise a very significant part of the caseload in that Court.
What has been observed, in earlier reports and in this most recent one, is that if the data is adjusted to exclude cases in which Crown Law is involved, then the percentage of women appearing as lead counsel in the Higher Courts drops markedly. When Crown Law is excluded, women led only 22% of cases in the Court of Appeal, and a dismal 16% of cases in the Supreme Court.
The implication is that Crown Law is making a deliberate (and successful) effort to ensure that women are getting their fair share of opportunities to appear on matters in which the Crown is a party. It must be possible for the partners of large law firms to make more of an effort in this area. As already noted, it is often the case that clients will accept their lawyer’s recommendation as to who ought to appear on a matter, including a recommendation as to who should lead it. This will be true whether the advocate is drawn from within the firm or from the independent Bar.
I suspect it will also be possible to improve the statistics by appealing directly to some of the clients. Crown Law has a client (the Crown) willing to play its part in working towards gender equality in the Courts. But there are many other prominent clients who are regular consumers of legal services – one thinks immediately of the banks and financial institutions, local authorities, insurers – who ought to be amenable to doing more in this area.
The first step will be to invite those regular users of legal services to consider the gender ratio of counsel representing their interests in court, and to encourage them to work with their legal providers (usually large firms) to achieve a more equitable outcome. A commitment to reporting the actual figures achieved is highly likely to be a catalyst for improvement.
Further reading
NZBA Gender Ratio of Counsel Appearing in the Higher Courts, December 2024
NZBA, Women lawyers remain under-represented as counsel in higher courts, March 2025
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