By way of explanation/disclaimer:
I am not one of the post–November 2019 appointments and have not spoken with any of them about my intention to raise my concerns. I do not speak on their behalf.
I am not familiar with the reasons behind the decision to reduce long leave entitlements for District Court judges from 20 to 13 weeks (a 35% reduction) after five years’ service, or the process by which this decision was reached, including any individual discussions.
I understand no financial or other compensation is being provided in lieu of the reduced long leave entitlement, which creates an unacceptable and unprecedented disparity in the leave entitlements among District Court judges depending on their date of appointment.
I suspect there has been recent focus on this as the entitlement to long leave for the first post–November 2019 appointments commences in early 2025, and the request for preferred dates for long leave allocation is usually received at least 12 months in advance.
Number of women judges affected
The Attorney General’s announcements on the Beehive website indicate that from November 2019 to date, 68 judges have been appointed, including appointments which have been announced, but the appointees not yet sworn in. That means in the last three and a half years, new appointments represent 37% of the maximum number of District Court judges (182 as per s 12 of the District Court Act 2016). Of note:
Of those judges appointed since November 2019, 59% are women.
There were no appointments between 1 November 2019 and the end of 2019.
Of judges appointed in 2020, 61% are women.
Of judges appointed in 2021, 46% of appointed judges are women.
Of judges appointed in 2022, 66% of appointed judges are women (although 2022 had just three appointments, perhaps because 2020 and 2021 had 49 appointments in total).
As of 17 July 2023, 75% of 2023 appointments or to-be-appointed judges are women.
I suggest it is the overall trend, which is significant, and if there is to be gender balance achieved in the District Court that trend will continue for the foreseeable future.
It is inarguable that reduced long leave has a greater effect on women judges appointed since 2019, as they make up the majority of appointments. I suggest it is predictable that this will continue to be the case for new appointments if women continue to make up similar numbers of appointments.
I acknowledge the same arguments can also be made for Māori and Pasifika judges, who have also been appointed in greater numbers since November 2019.
Impact on those women appointed
I suggest that the reduction of long leave has a greater impact on women judges because it is recognised that women undertake more domestic caregiving and caretaking than men.
The latest wellbeing report from the OECD, entitled How's Life?, shows New Zealand women undertake 15 more hours of unpaid work a week than men — one of the highest gender gaps for unpaid work in the OECD. This report confirms women continue to undertake the majority of unpaid work, including caregiving (adults and children) and household domestic work (cleaning, shopping, cooking, management of household, and of necessary appointments), despite spending more time in paid work outside the home than has previously been the case.
This suggests paid leave entitlements are of greater value to women, who are time poor and have more responsibilities in the home. Further, this loss of leave is not easily recompensed through increased financial payment, even if that were an option.
The 20 weeks long leave entitlement, which pre-November 2019 judges enjoy, was presumably negotiated and accepted as being necessary to ensure the wellbeing and good functioning of District Court judges. There is nothing to suggest that it is no longer needed. In fact, there is arguably more need for long leave now than when this was first introduced, given the greater breadth of jurisdiction of the District Court, more complex and serious cases we are seeing before us, and the additional public scrutiny and criticism this role attracts.
For those reasons, I am concerned about the future impact on the wellbeing of those judges appointed post November 2019 who will have less long leave. I expect this will result in more illness and earlier retirements.
The situation will be further compounded when the post–November 2019 appointments are required to cover the long leave of the pre-2019 appointments. It is generally acknowledged that there are currently insufficient acting warranted judges to cover the gaps caused by illness and leave. It is inevitable that greater responsibility for the continued operation of courts will fall on those permanent warranted judges in their home courts, rather than on acting warranted judges, or others who may be brought in to provide temporary cover.
Impact on the whole District Court and all benches
This is an issue that should concern all judges, regardless of the court to which they are appointed, or their date of appointment, for the following reasons:
The wellbeing of our colleagues affects us all
This potentially sets a precedent for the further erosion of terms and conditions for future appointments and for the introduction of individually negotiated terms and conditions
Has a precedent now been established for reducing or varying terms and conditions for all judges? Is an argument to be made that if the post–November 2019 appointments are able to undertake their roles effectively with less long leave, the rest of us should also be able to do so?
Is it acceptable to condone a system which requires women (and Måori and Pasifika) to do more for less, to enable the continued operation of that system?