Quoting figures from The New Zealand Census of Women’s Participation, Dame Sian Elias said that despite the fact that women comprised 62 per cent of admissions to the profession (a statistic which has been above 50 per cent for more than 10 years) and comprised 41 per cent of the legal profession, only 16.8 per cent of women were partners in the larger legal firms, and that overall they numbered only 19.34 per cent of partners in firms of all sizes.

Of the 90 practising Queens Counsel in New Zealand, 11 were women. And while 35 per cent of barristers sole in New Zealand were women, her Honour said this was not necessarily a good sign.

Rather than following the traditional route of emerging from firms at a comparatively late stage, usually to qualify for silk, she pointed out that “[m]any [women] have resorted to practice at the bar either because it is easier to juggle with child-rearing responsibilities … or because promotion within legal firms has not been available to them.”

Reviewing New Zealand’s legal history, her Honour pointed to the struggles undertaken by Ethel Benjamin as she fought to carve out a career for herself in the law. “It would be nice to be able to report that Ethel Benjamin confounded the sceptics and had a fulfilled and honoured career in the law,” she said. “In fact, she was frozen out from conventional work, as from the society of her fellow practitioners.”

The chill that buffeted Ethel Benjamin, said the Chief Justice, is still felt by those in practice. The Human Rights Commission reported that “[a]t least 15 years after the free flow of women to the bar began, few [were] appearing in appellate matters or in big commercial cases, although the reasons for this [were] unclear”.

Anxiety felt by women in the profession about their prospects of advancement are well founded, said the Chief Justice. Their prospects of advancement are more limited, she said. Furthermore, “the insistence on ‘merit’ (which is self-reflective) and the blind faith (against the evidence) that self-correction is only a matter of time and numbers must now be seen as denial”, she said.

Her Honour described to the conference the impediments to women’s participation in the profession. Not confined to those that block the door, she said they include patterns of behaviour and work which women do not accept or cannot meet.

In addition, strategies for overcoming these impediments may collide with legal culture or give rise to fears that women will receive advantages. “Young women with family responsibilities cannot keep up with ridiculous billing hour requirements or demonstrate commitment by working unhealthy work hours,” she said.

Of course, if they were prepared to do it, she said, then “the chance for the shift in the legal culture recedes and accommodation for others is resented as favoured treatment”.

When she commenced practice, her Honour said, she expected to be laughing in 2008 about the way things were in 1969. At the time, she said, it did seem that they were in the middle of a fundamental shift in attitudes and opportunities, with many of the more ridiculous prejudices against women melting away as male practitioners confronted the reality of women practitioners: “Women’s voices did carry in court. Women could think like lawyers — and even out-think male opponents.”

However, she said, this fundamental shift has clearly stalled. Said the Chief Justice: “The intractability of the issue of gender equality in our societies more generally and in the international community is now evident.”

Discussing the gaps between expectation and reality, her Honour stated that the extent and violation of women’s rights was staggering. “In employment, education, and income in all societies women come in well behind men.”

For those women practitioners who do attain the ultimate goal — partnership, Queen’s Counsel, or Chief Justice — she said: “We have lost the plot if we think it is the end.”

To make a difference in the world, her Honour said women lawyers had to be good lawyers, and they also had to understand that the experiences and perspectives they bring as women were important and valid considerations for their work.

“The distinct experiences and perspectives of women are critical if law is to be applied in the context of modern society.” Furthermore, she said, “the visibility of women lawyers and judges is critical in breaking down stereotypes and is important for that reason alone”.

But being good lawyers will not be enough to redress the inequities in the legal profession. Instead, both the culture of the profession and the cultural impediments faced by women in our society must be tackled, said the Chief Justice.

This article first appeared in our sister publication NZ Lawyer