The Battle of Human Rights in Auckland
Frances Joychild is a Queens Counsel practicing in Auckland, New Zealand. She works in the field of civil litigation with a human rights speciality. She has been in sole practice for 19 years advising and appearing for a broad range of people and organisations since leaving her role as counsel at the Human Rights Commission. We speak with her today on how she is a game changer in the human rights sector, what motivates her in her role and landmark cases she is proud to have contributed towards.
Throughout your years of practice, what has been your favourite and proudest case and why?
There are several cases. The one that has ongoing potential to make a positive difference, even to this very day, took place before I was practising as a solicitor. It was a 1985 test case of H v E, which established that sexual harassment in employment, goods and service provision, tenancy and education was a breach of the anti-discrimination provisions of the Human Rights Commission Act 1977. The case was heard before the New Zealand Equal Opportunities Tribunal and I was the commission investigator handling it and briefing counsel.
The decision meant that the investigation and mediation processes were accompanied with the opportunity for meaningful restorative steps, including compensation, which were available for complaints of unwelcome and offensive sexual behaviour. Unexpectedly, this had an unexpected effect. Victims of such behaviour, including sexual assaults and rapes, came forward in large numbers. What drew them was the alternative process to the criminal justice system or civil adversarial process for processing such allegation. At that time, it involved a private investigation by sensitised skilled persons, followed by an analysis of the law and facts and advice to both whether the Commission considered the complaint had substance; if it did, an offer was made to both parties to mediate a resolution. That enabled resolution which was meaningful to the plaintiff, dignifying to both parties but kept legal rights, if either chose to proceed to an adversarial hearing.
Initially, there had been a crisis within the Commission, especially the trained lawyer Commissioners, as to whether it was proper to accept sexual assault and rape allegations for this type of civil resolution, rather than referring them straight away to the police for criminal charges. However, complainants were clear that they could not and would not go to the police due to the punitive and traumatising criminal justice processes. At the same time, they wanted to hold the perpetrating manager, employer, landlord or lecturer accountable, but through a supported private restorative process that had meaning to them and respected their privacy. For example, they may have sought an acknowledgment from the perpetrator, such as a face to face apology in a controlled setting, among other things.
Though the Act was amended after about nine years and the inquisitorial and opinion forming aspect of the process was removed, I believe this model is a precedent for a better way of handling most offensive and unwelcome sexual behaviour, in any area, especially where there were prior relationships between the parties or will be on going relationships. The effects of unwelcome and offensive sexual behaviour are so huge for society as a whole. This was not understood a generation ago; these actions are often destructive to the victim’s emotional and psychological wellbeing, their work performance and general organisation functioning, as well as affecting those around the victim, including their family who live with them and work colleagues. We have come a long way in naming unwelcome and offensive sexual behaviour and outing it. But we need a better way of resolving it than what is on offer now.
A case I acted in five years ago was particularly rewarding for me due to the wonderful people I met. I was counsel for seven parents of adult children with major disability support needs and two of those adult children. They were each challenging an irrational, unfair and unwieldy government bureaucracy which was refusing to pay them for the care work they did for their children. The children wanted to have their parents as their paid carers. At the same time the government was refusing to pay parents, it would pay a neighbour to come into the home to do the exact same care support tasks. The case was challenged by the Crown through a six-week Tribunal hearing, at the High Court and Court of Appeal. The parents succeeded at every step. However, litigation is still ongoing as the government later enacted legislation to permit payment, but limited the rate for parents to minimum wage and 40 hours per week only. It also blocked any other parent claiming back payment.
What has been your most challenging case and how did you overcome these challenges?
Probably in 1987 when I was the office legal adviser in a claim of employment discrimination taken by the Human Rights Commission on behalf of 17 air stewardesses against Air New Zealand. The women had been locked into a two-step promotion system that ran parallel to the main five -tep one. Their male peers in terms of seniority were chief pursers. When the system merged with the main one, the women had to go to the bottom of the promotion queue, alongside new recruits. They would not recognise the women’s years of service.
When mediation attempts failed and we launched proceedings, I was shocked and unprepared for the bitterness and anger the case raised inside the women’s male dominated union. The majority of the members, including the leadership, were deeply resistant to the claim for equal promotional opportunities. The women were trapped because their employer was not prepared to enforce equal opportunities against the wishes of the union, though it expressed sympathy to their claims.
There were some horrible retaliatory measures against the complainants, including death threats, racial abuse and character assassination. Towards the hearing, which was two years in the preparation, so much was happening on a daily basis I became very fearful of the lengths the antagonists were prepared to go to. The challenge was to keep morale during the long wait, ease fears and keep preparing the case.
There was a difficult legal issue of retrospectivity and we had been given only a 50/50 opinion of success when we started, so I constantly wondered about the ethics of what the case was putting the women through and whether we should advise them to stop. But these women, whose day time jobs required them to be charming and accommodating, evolved into steely individuals who held their dignity while they claimed their rights. To my amazement there were about 17 applications from the media for filming on the first day of the six-week hearing. It was widely reported and supported in the media. The women won against their employer and the case was settled. Years after the union acknowledged the error of their ways. I learned a huge amount about human behaviour through that experience.
Out of all the practice areas you specialise in, which is your favourite and why?
I enjoy test cases – those that make a systemic challenge and have the potential to bring positive systemic change, whether I am acting for plaintiffs or defendants. Through such cases a better system often comes about. There have been many in the human rights field over the years that I have been involved in.
I often feel humbled and grateful to work for people stoically dealing with harsh things that life has thrown at them. I learn so much from them, including how indomitable the human spirit is and its wisdom and courage. I also enjoy working with those responsible for organisations and helping them work through how they can better comply with the needs of players (in sport), and customers, clients or employees from a human rights perspective.
You are often called for cases involving human rights; how has the human rights sector changed throughout the years? Have you been involved in cases that have changed the sector in the long run?
The human rights sector has grown and human rights have become more mainstream. Over the years the Human Rights Commission and Director of Human Rights Proceedings have been the major players in funding systemic human rights litigation. A lot of my work has been funded through them.
However, currently I am acting for a major NGO in the disability sector which is taking discrimination proceedings against the government for the disadvantageous way it delivers education support needs to students with disabilities. Some cases raising significant human rights dimensions are eligible for legal aid. I have acted for social security recipients challenging policies that affect them, both on legal aid and pro bono.
The Secular Education Network is crowd funding to pay for a legal challenge to the provisions allowing Christian religious instruction in state funded schools. Last year a major law firm took a claim on behalf of a terminally ill woman seeking the right to die, should she want at the time.
Which sector do you think needs the most reforming in New Zealand? How does this legal sector compare with other jurisdictions?
Well I don’t need to go outside my own legal sector to say that it needs major reform. Currently, I would say that as many as 60% of New Zealanders have no real access to civil justice as they cannot afford to hire a lawyer or pay court fees. In this respect things are better for the very poor, as they can be required to repay part if not most or all of what they borrow.
When people cannot afford to challenge a civil wrong done to them, then society as a whole suffers greatly and the rule of law diminishes. The courts become unaware of how huge numbers of the population live their lives and this affects assumptions made by all players in the court system. One thing we do not have in New Zealand, which most other comparative jurisdictions do, is a Pro Bono Clearing House which matches lawyers and their specialities with persons needing legal help. There are plenty of lawyers doing pro bono cases but in a hit and miss ad hoc way. Developments are now underway for a clearing house here.
A few years ago a young barrister who was finding difficulty getting paid employment approached me for work. Being conscious of the dire shortage of civil legal aid lawyers in Auckland since punitive changes were made to the legal aid system, I took him on and increased the legal aid, low bono and pro bono cases I took on. I supervised him doing the bulk of the work. We had some wonderful outcomes for people who otherwise may not have got representation. He gained tremendous experience in multiple areas of civil law including employment, contracts, professional regulation, property, tort, refugee, martial, superannuation and insolvency. He has left and I have greatly reduced my legal aid work, for financial reasons, but it was good to contribute for two years in a sustained way like that.
At the same time, a retired judge in his 80’s offered to help me one day a week pro bono. The ex-judge reviewed new cases that came in from people with no ability to pay and gave advice on processes, causes of action and the like.
I have many approaches from young lawyers longing to do work which is meaningful to them and will make a difference in society. Somehow we have to harness their passion and skills to the huge swathe of unrepresented people. We have to keep thinking how it can work.
How do you prepare yourself for a Court case? What are important things to remember?
Everything is in the facts. Even when I have very competent instructing solicitors and junior counsel I make sure I have read every document and affidavit so I have the full factual picture in my mind. Legal research is next important to make sure I have the most appropriate causes of action and am aware of all possible defences. The pretrial steps are also very important. You need to be on alert to make sure your client will not be disadvantaged at trial by any orders sought by the other side etc. It is also important to push on discovery to make sure you really do have all relevant documents.
What is your main motivation behind all your success in the legal sector?
I guess it has always been to make a difference for the good of our human species, the planet as a whole and all other species we share the planet with. Throughout my childhood and parental influences I am sensitised to vulnerability and injustice and the fact that things need not be the way they are. More importantly, there is no point doing anything unless you can have fun with it and I really do enjoy being creative as a lawyer. When I took on a junior a few years ago I told him that was our primary objective; if you are happy and positive you are more creative in your legal thinking, more empathetic, more focussed and more litigating. Being a human rights lawyer requires a lot of energy and creative thinking, and alongside that inbuilt passion, it really pushes me to achieve the best for my clients.
