Courts make good start with taonga instead of ties
Iwas recently reminded of my very first appearance in the High Court as a freshly qualified young lawyer in the 1990s. When I stood to introduce myself, I was met with a curt response from the presiding judge: ‘‘I’m sorry, I can’t hear you Ms Quince.’’ Like many before me who had probably fallen for this line, I assumed he literally couldn’t hear me, so I repeated myself, loudly – only to receive the same reply.
After one more round of this game, by which time I was thinking this guy needs hearing aids, I was pulled aside by a senior male lawyer, who filled me in on the problem. I was a woman, and I was wearing trousers – at a time when female lawyers were still required to wear a skirt; a black skirt to be precise. I hadn’t worn a skirt since I was about 10, and have rarely worn one since, but on this day in 1997 I learned that my black trouser suit meant His Honour was unable to hear me, as I had breached the then rules of court attire.
Two weeks ago Chief Justice Dame Helen Winkelmann issued interim guidance allowing for the wearing of culturally significant taonga in court, instead of a tie, following the recent lead of
Parliament in response to Rawiri Waititi’s challenge to the House rules requiring members to wear ‘‘formal business attire’’ during sittings.
Taonga that may be worn in court are likely to include pounamu, bone or wooden hei-tiki, toki, manaia and hei-matau, representing various deities and characteristics in te ao Ma¯ ori. These treasures are highly valued, given and received in love, and worn with respect and reverence for the spiritual linkages they represent between people, often across time and distance. While I know men who value and even carefully cultivate their collection of neckties, I doubt any view them as a bastion of mana and identity, in the way that the wearing of a taonga conveys.
In her statement, the chief justice was careful to remind us that ‘‘the overriding requirement is that conduct and attire demonstrate respect for the court and those participating in its proceedings’’. The latter part of her advice is instructive – the rules are not just about the forum but about the people.
When the rules of attire for court and Parliament were initially developed, the people in these
places would have been a pretty uniform bunch, of Pa¯ keha¯ men. Today of course, the people participating in courts include not only the increasingly diverse lawyers and other professionals present, but also defendants, victims and witnesses who represent the whole of our society.
I’ve heard former chief justice Dame Sian Elias recount being a young litigator in the High Court, with no robing room or facilities
for her or the handful of female lawyers at the time. She, like the late iconic American jurist Ruth Bader Ginsburg, pushed against the rules of traditional attire by having collars made to resemble the more feminine frilly jabot rather than the plain split bib worn by barristers – claimed to represent the tablet of Moses.
Ironically, when New Zealand’s first female lawyer, Ethel Benjamin, was admitted to the bar in 1897, the Otago District Law Society unsuccessfully attempted to impose an alternative dress code on her. Benjamin won the right to wear the wig, gown and bib worn by her male counterparts, and is so dressed in photos of her in practice.
Cynics might claim that partial changes to dress requirements represent surface level concessions only, while significant structural issues remain unaddressed, and there is truth in that.
This criticism fits within the ‘‘cultural iceberg’’ theory of anthropologist Edward T Hall – which places visual aspects of culture such as dress, appearance, food and language in the 10 per cent of the iceberg we can see above the waterline. Less visible, and often more fundamental, cultural characteristics including values, conceptions of justice, handling of emotions and patterns of decisionmaking are found in the bulk of the iceberg below our line of sight.
Surface-level reforms are invariably the first changes to be made in systems and processes – a good start, but only a start.
The Law Society said that it was delighted with the announcement, with hundreds of members declaring support for the change, as part of wider moves towards making court a more inclusive place. This could be placed in the context of an increasing use of te reo Ma¯ ori in court, and in the Chief District Court Judge Heemi Taumaunu’s flagship Te Ao
Ma¯ rama work programme, which envisions an inclusive court, where persons of all backgrounds can come to seek justice and be fairly seen and heard.
The courts, like Parliament, value tradition and formality, and are central to the public operation of justice and governance of our country. It is therefore vital that, despite being rooted in the traditions of our British forefathers, they need to balance respect for the past with reflecting our contemporary populations and post-colonial aspirations.
Not all lawyers embraced the new exemption, with one in Northland saying he would stick with the necktie ‘‘for the sake of consistency’’. I’d remind my colleague that, while often slow to change, these rules do in fact develop and have in our lifetimes. Nearly 25 years later, I could legitimately appear in court in my black trouser suit, if only I could still fit it.