New Zealand Law Society - Key Legal Milestones in Aotearoa New Zealand’s legal and constitutional development

Key Legal Milestones in Aotearoa New Zealand’s legal and constitutional development

LawTalk speaks to four of our changemakers across the generations and from different parts of society to understand the key milestones or events that shaped either their own futures and caeers, or those events which shaped the future of Aotearoa New Zealand.

Aotearoa New Zealand hasn’t just been shaped by events themselves; people have shaped our legal and constitutional development in more ways than just taking part in significant moments. Whether they be leaders, regular New Zealanders or those from far away lands, our nation has had many people who not only have led and shaped events, but been captured by them and have had them shape their own desitiny.

As part of this edition of LawTalk, we spoke to four of our changemakers across the generations and from different parts of society to understand the key milestones or events that shaped either their own futures and caeers, or those events which shaped the future of Aotearoa New Zealand. An incredibly colourful mix of events right from the arrival of Kupe through to modern times with legislative and cultural instruments defining a generation of people.

Sir Anand Satyanand

Sir Anand Satyanand is a former practitioner, judge, ombudsman and governor-general, and currently chancellor of the University of Waikato. Sir Anand was governor-general in a time of cultural and social change for New Zealand, and his leadership throughout the decades in the legal world spans a variety of different roles and responsibilities.

Five milestones for someone who has worked in and around the law for five decades, provide a large tapestry from which to identify highlights. My list is not in order of importance, but each item registers its presence in an enduring fashion. I have restricted mention to things with which I have had personal association.

The first is legal drafting, which I have seen close up as a practitioner, judge, ombudsman and most latterly as governor-general. It began with membership for a number of years of the government’s Criminal Law Reform committee, where I came to admire the acuity of draftsman, Denzil Ward, as we worked on changes to the Crimes Act (to do with expression of the defence of self defence). Ward’s knowledge of the law and ability with its expression, came to be admired against the skill sets of the other members including leading members of the law teaching profession and practitioners. The elegant expression of the Ombudsman Act 1962 which has lasted for 60 years this month remains a tribute to Ward, not least for the legislation’s uptake in a number of other jurisdictions.

The second is the cessation of final rights of appeal to the Privy Council in London and the establishment of the Supreme Court in our own country. At the beginning of the 1980s, I conducted an unsuccessful appeal in the Downing Street London premises of the Privy Council. The circumstances of the case were of no great public importance but were crucial to the family of the litigant. I felt that the attention of the Law Lords was polite and kind, but so far removed from understanding the day to day circumstances of our own country that such called for replacement by a locally based tribunal.

The third is what I consider to be the efficacy of resolution to problems that is offered by the office of the Ombudsman which New Zealand instituted in 1962 as the first country in the English speaking world. In circumstances when combination of a judicial kind of oversight over governmental action that has occurred with a recommendation about what might be done to ‘put things right’ have been proved to be something that New Zealanders have accessed regularly for 60 years.

The next milestones are to do with continuing legal education for practitioners and judges. Developments in the law, and techniques needed for its implementation are now part of regular experience of practitioners, and the more-so because of availability of programmes on line. In a similar way the Institute of Judicial Studies makes possible the upskilling in such things as judgement writing.

Lastly, I have been pleased to see develop and come into being, the PILON programme in which the successful model of the litigation skills programme developed in New Zealand, has been adapted and provided for legal practitioners in a number of Pacific settings. This has been adversely affected by the Covid-19 pandemic but is something that should, in the eyes of many, resume in the near future.

Hon Dame Lowell Goddard KC

Hon Dame Lowell Goddard KC is a barrister and King’s Counsel, a former Deputy Solicitor-General, Crown Solicitor Nelson, High Court Judge and chaired the Independent Police Conduct Authority. She has also served as an expert member of the UN Subcommittee on Torture and other Inhumane treatment of persons in detention, chaired the UK Independent Inquiry Into Child Sexual Abuse and had been co-Convenor of Royal Society project on Fair Futures in Aoteoroa New Zealand.

Senior Counsel assisting the Cartwright Inquiry into the Treatment of Cervical Cancer at National Women’s Hospital

The Inquiry, which took place during 1978/1988, was charged with investigating allegations of failure to adequately treat carcinoma in situ at the National Women’s Hospital in Auckland; the reasons for that failure; and the period over which the failure occurred.

The Inquiry was ground-breaking and had a profound and lasting effect on the rights of patients going forward and on the legal obligations required of medical practitioners. In particular, it introduced the concept of a requirement for the informed consent of patients included in research or undergoing treatment. This requirement has since become universal across all patients in all areas of medical practice.

Taking Silk

This was a significant milestone in my own career but also marked a major step forward in the recognition of women as competent, leading practitioners. Of great pleasure was the sharing of the occasion with my longstanding friend, Sian Elias, later to become the first woman Chief Justice of New Zealand.

Crown Law/Deputy Solicitor-General/Crown Solicitor Nelson

A further significant milestone occurred when I was recruited by John McGrath QC, the Solicitor-General, in 1989. John was embarking on a review and restructuring of the Crown Law Office and asked if I would lead the Criminal Law Team. The following six years were stimulating, challenging and rewarding. It was a time of high energy and huge change in the wake of Public Sector reforms and major developments in the law. Notable were the emergence of Treaty jurisprudence following the Lands Case of 1987; the enactment of the Bill of Rights Act 1990; reforms in the criminal law, including the development of sophisticated forensic techniques (DNA); the requirement to video-record suspect’ interviews; the abolition of an unfettered right to cross-examine rape complainants on past sexual experience; and the video interviewing of child sexual complainants by specialist interviewers.

Appointment to the High Court Bench

In 1995, I was honoured to join Dame Silvia Cartwright and Dame Sian Elias on the High Court Bench and to be the first appointment of Māori descent.

Chair IPCA/2010-2016 Member of UN Subcommittee on the Prevention of Torture (SPT)

In 2007, I was seconded from the High Court Bench to chair the IPCA. During my 5 year tenure, the Authority exercised its statutory remit to also carry out reviews of Police practices, policies and procedures. Such reviews were into Deaths resulting from Police Pursuits; Deaths in Police custody between 2000 and 2010; and into the Treatment of teenagers in police cells. An Inquiry into Police handling of child abuse cases was conducted between 2009 and 2011. A significant investigation carried out during my tenure was into the Urewera Raids.

In 2007, the IPCA was designated a ’national preventive mechansim’ under the Crimes of Torture Act, which required responsibility for monitoring conditions and treatment of detainees in police custody. In 2010, I was elected to membership of the United Nations SPT and served as an expert member until 2016. During that period I took part in a number of field missions to State Parties such as Ukraine, Argentina, Cambodia, Albania and Georgia.

Hon Amy Adams

Amy Adams

Hon Amy Adams is a former Minister of Justice, member of parliament for the Selwyn electorate, partner and practitioner in Christchurch, and current Chancellor of the University of Canterbury. In her time as Justice Minister, Amy oversaw significant change alongside Attorney General Christopher Finlayson KC to our justice system, including heralding in the Senior Courts Act and other defining pieces of legislation.

It’s an honour to be asked to reflect on the top five milestones or moments in my legal career.

In approaching this I’ve taken my legal career to include both the pracrtise of law and my time as a Member of Parliament, and subsequently Cabinet Minister.

Initailly I thought about the five most memorable laws that I have had a hand in passing or decisions I have made and I will reflect on some of those, but instead I’ve decided to approach the topic in terms of some, perhaps unexpected, moments that I believe have been key for me.

Address by Justice Susan Glazebrook in the 1990’s

As a young female lawyer without a family background in law I remember vividly an address by Justice Glazebrook encouraging young female lawyers and talking about her path to the bench. Through hearing her story I came to believe that all things could be possible. This experience stuck with me over many years as to the importance of role models and the need to see people that look like us in successful roles to develop belief in our own ability.

Creation of a part-time/flexi partnership model

One of the most imortant people in the development of my legal career was Simon Mortlock, then senior partner of Simon Mortlock Lawyers. Simon was a tireless champion for social progress and was determined that a new model could be developed, first for me to join the firm as a mother of two very young children on a part time basis, and later to become a partner in a similiarly flexible way. To my knowldge this was the first time this had occured in Christchurch and was pivotal in being able to remain in law while raising my children.

Election as an MP

After working as a lawyer for 16 years my increasing frustration at ‘how the system was’ saw me turn my mind to politics. Anyone with children will know how it focuses you on the future we are building for them and for me this saw me look toward Government. Having no family or training background in politics this was a total leap off a cliff but the opportunity to represent my community for 12 years was genuinely a pleasure.

Becoming a Cabinet Minister

Once you enter politics you quickly realise that to make significant change you have to be in the cabinet room so the Prime Minister of the day taking a chance me and giving me the opportunity to hold 14 different portfolios, including Minister of Justice, was huge. This is when you really get a chance to drive change.

Being part of important reforms/decisions

I’ve deliberately left this for last as none of these would ever have occurred but for each of the previous four. Ultimately to me success will always be measured in the difference you make and so reflecting back some of the work I’m most proud of would have to include developing a new set of family violence laws and practises, increasing fibre and cellular connectivity across NZ, creating a historical regime to expungment historical convictions for homosexuality and being part of the cross party abortion reform work.

You always leave Parliament with more you would’ve liked to do but I feel tremendously grateful that my legal career has allowed me so many opportunities to date.

The Honourable Justice Joe Williams

Joe Williams

The Honourable Justice Joe Williams made history as New Zealand’s first Māori Supreme Court judge. An accomplished expert in Indigenous law, he has served in various judicial roles: first, on New Zealand’s specialised Indigenous courts (the Māori Land Court and Waitangi Tribunal), then the High Court, and Court of Appeal. He is of Ngati Pūkenga, Waitaha and Tapuika nation.

Kupe and Kuramarotini arrive from Hawaiki circa 1250, bringing with them our first (tribally-based) legal and constitutional order. We know the whakapapa well but not the precise date. A modern legacy of this is the continuing Māori insistence on the expression of political mandate tribally pluralistically.

Treaty of Waitangi is signed 1840 signifying the tentative arrival of English law, leading eventually to revolutionary conflict between the old tribal and new centralised legal and constitutional orders. The old order is displaced to a significant extent in the succeeding 135 years, but not entirely (see item 4).

Electoral rights in the form of the universal (that is non-property-based) adult franchise are progressively recognised: male Māori over 21 – 1867; all males over 21 – 1879; all females over 21 - 1893. Over this period, there was a relatively small electoral population and high levels of elector political engagement at least among settlers. Large-scale settler immigration drove and required rapid transformation of the landscape and economy. These factors meant voters demanded and got a very centralised constitutional and legal order and a very active legislature. This political culture remains.

Women vote at their first election, Tahakopa. Ref: PA1-o-550-34-1. Alexander Turnbull Library, Wellington, New Zealand.

Treaty of Waitangi Act 1975 signals the beginning of the process of recognising and recalibrating the place of the pre-1840 legal and constitutional order in contemporary New Zealand, a process that continues.

MMP is introduced in 1993. This has led to the evolution of a very diverse legislature in terms of ethnicity, gender and political perspective. That in turn has helped New Zealand to locate itself more comfortably as a small but very diverse Pacific country.