Following on from the troubles in Samoa last month, this has been a challenging few weeks for judges at home and abroad. The lockdown in Wellington was worrying and no doubt a trial for local judges. As was the personal discovery by text message that I was a “Covid Plus” person of interest and should isolate, but that’s a story for another day!
During my confinement, I was intrigued to read about the most conservative bench in the United Kingdom uniting to confront the executive about failures to respect judicial independence. There are even UK decisions that require judges to have the same statutory protection and entitlements as other workers under safety, employment, holiday, and whistleblowing legislation. Now there’s an interesting tip of an iceberg for us in Aotearoa. Here are three articles from the Times I urge to read and consider.
Judges face ‘bullying on an industrial scale’
Non-white judges ‘do not feel welcome on the bench’
Whistleblowing policy ‘gags judges’
Meanwhile, in South Africa. At the inauguration of the constitutional court in 1995, Nelson Mandela, himself a qualified lawyer, urged South Africa’s highest bench to “guard not only against direct assault on the principles of the constitution, but against insidious corrosion”.
On Wednesday of this week, the acting Chief Justice, Soweto-born, Harvard-educated Sisi Khampepe, returned to Mandela in her excoriating constitutional court ruling that sealed Jacob Zuma’s fate. Her Judges are regularly vilified, attacked and insulted, yet will not yield to politicised attacks, nor surrender their independence.
Quoting a statement Mandela made at his treason trial that led to him being jailed for 27 years, Her Honour repeated: “I too cherish the idea of a democratic and free society in which all people are as equal in opportunity, as they are in accountability, before the law.”
Returning home. Last month I wrote, again, about the causes of judicial stress suggesting that administering justice only by the executive demand for file velocity was unsustainable. Further, if we want resilient healthy compassionate judges and courts where everyone, regardless of means, abilities, culture, or race, gets heard and achieves justice, then we need to work less and slow down.
The response from readers was outstanding. Many of you who wrote or called are seriously worried about the relentless demands placed upon us to do more with less, burning out, emotional exhaustion, and the impact of all this upon our family. Many saw the clear link between the pace and intensity of our demanding work and the aspirations for Te Ao Marama. Many of you believed the key to this enlightened policy was fewer cases in court so judges may slow down and provide the greatest judicial service we can to the person in front of us; our time and consideration.
You are not alone. At the Triennial Jury Judges Conference, the President of the NZLS, talked about lawyer stress and four practical ways we can simply help them at each appearance. (You can read her full address here). Tiana Epati also shared her first-hand experience of watching her dad struggle with the pressure of being a judge. We were reminded that at Semi’s final leaving dinner he was quite open about the very public mental breakdown he suffered. Tiana believes we lost him from the bench early because he did not take care of himself. Her warning to us all bears repeating: “I need you to not do what he did and prioritise your mental health”.
Also, this month, Jeff Smith attended a UNDOC webinar on our behalf about the effects of judicial work demand upon judges and their judicial independence. (You can read his full report here).
There were several speakers, Sally Ryan and Carly Shrever from Australia, Justice Luciana Munch from Brazil, Justice Mary Rose Gearty from Ireland, and the Special Rapporteur to the UN on Judicial Independence, Diego Garcia.
The most interesting discussion was delivered by Carly Shrever, well known to most New Zealand judges, for her part in our wellbeing seminars. Her PhD, recently completed in relation to the Australian judiciary, firmly correlates judicial work demand with burnouts, cynicism, compassion fatigue, emotional exhaustion, and inefficiency effects. Her description of our challenging work environment aligns with reality.
We have a difficult job. Daily, we operate within an environment of conflict and disagreement, working through heavy caseloads involving distressed, frightened, or traumatised people, and digesting accounts of dishonesty, tragedy, extreme violence, and abuse — all to navigate complex legal frameworks and make decisions that significantly impact the lives of the people in our courtrooms.
We know things like heavy workloads, unrealistic deadlines, poor communication, and file uncertainty, all compound the difficulties of that job. It is little wonder that anxiety, indecisiveness, loss of meaning, at times anger, and irascibility are the inevitable result. We know this, yet we do nothing about our working conditions. Judicial stress and wellbeing can co-exist. There are some good therapeutic ideas that encourage a better work/life balance. However, programmes such as Mauri Tu represent a response to stress but not action about what causes it. In our submission on the Mauri Tu programme design, we said:
We must be accountable for work performance. However, that can no longer come at the expense of our brother and sister’s poor mental health and the impact that has upon our families. The missing component in Mauri Tu is caseload calibration. We have achieved much with scheduling and rostering of a judge’s work. However, these blunt tools designed only for managed justice and file velocity principles omit calibration of the type and intensity of judicial work.
Yes, judicial wellbeing and stress can co-exist. However, we must take better care of ourselves. We can little afford to make mistakes on the things that matter in the lives of others just because we don’t have the gumption to put our hands up and say, “Enough already.” If we continue to soldier on ignoring this elephant in the room, it’s bad for us, bad for our family, bad for chamber mates dealing with us, and sad for the people we serve.
A first task of the JANZ Foundation, our research and charitable arm to be launched at our September gathering in Wairakei, will be to commission some specific New Zealand research about judicial work demands and unsafe working conditions and how the calibration of assigned tasks might improve work safety and judicial health.
We need to talk. Wairakei will give us the opportunity to do so. Have you registered for the gathering yet? If not, send Lara an email now at admin@janz.nz.
I end this month by quoting Dr Ian Lambie, another speaker at our recent Jury Judges conference who shared a hilarious clip of Bob Newhart as a therapist in the spoof: “Stop It!”
This dry month of July, when abstinence is in the air, I put down another challenge, a wero, for you to pick up. This month, when the demand is unreasonable, when you know you are at your tether’s end. Be kind to yourself and others. “Stop it”. Say “No”. It’s ok, just say no.