Feminist Judgments of Aotearoa New Zealand: Te Rino: A Two-Stranded Rope 9781509909711, 9781509909766, 9781509909759

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FEMINIST JUDGMENTS OF AOTEAROA NEW ZEALAND This edited collection asks how key New Zealand judgments might read if they were written by a feminist judge. Feminist judging is an emerging critical legal approach that works within the confines of common law legal method to challenge the myth of judicial neutrality and illustrate how the personal experiences and perspectives of judges may influence the reasoning and outcome of their decisions. Uniquely, this book includes a set of cases employing an approach based on mana wahine, the use of Maori values that recognise the complex realities of Maori women’s lives. Through these feminist and mana wahine judgments, it opens possibilities of more inclusive judicial decision making for the future.

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Feminist Judgments of Aotearoa New Zealand Te Rino: A Two-Stranded Rope

Edited by

Elisabeth McDonald Rhonda Powell Māmari Stephens Rosemary Hunter

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 Cover image © Julia Brooke-White Photography, 2017 © The editors and contributors severally 2017 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, ­electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50990-971-1 ePDF: 978-1-50990-975-9 ePub: 978-1-50990-973-5 Library of Congress Cataloging-in-Publication Data Names: McDonald, Elisabeth, editor.  |  Powell, Rhonda Louise, 1979- editor.  |  Stephens, Māmari, editor.  |  Hunter, Rosemary C., editor. Title: Feminist judgments of Aotearoa New Zealand : Te Rino: a two-stranded rope / edited by Elisabeth McDonald, Rhonda Powell, Māmari Stephens, Rosemary Hunter. Description: Oxford ; Portland, Oregon : Hart Publishing, an imprint of Bloomsbury Publishing Plc, 2017.  |  Includes bibliographical references and index. Identifiers: LCCN 2017036961 (print)  |  LCCN 2017038069 (ebook)  |  ISBN 9781509909735 (Epub)  |  ISBN 9781509909711 (hardback : alk. paper) Subjects: LCSH: Law—New Zealand—Philosophy.  |  Feminist jurisprudence.  |  Law reform—New Zealand.  |  Women—Legal status, laws, etc.—New Zealand—Cases.  |  Civil rights—New Zealand—Cases. Classification: LCC KUQ440 (ebook)  |  LCC KUQ440 .F46 2017 (print)  |  DDC 349.93—dc23 LC record available at https://lccn.loc.gov/2017036961 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

FOREWORD HE KUPU WHAKATAKI

Ko Justicia, te māreikura Rōmana o te Tika, ā, ko ia te whakatangatatanga o te Tika, ko Rēri Tika. Ka whakaaturia ia me ōna karu e kapea ana ki tētahi uhi, e pupuri ana hoki ia i tētahi ine taumaha, i tētahi hoari hoki. He tohu te ine taumaha o te tikanga tātari, o te tikanga whakaaro ka whāia i ngā taha e rua o tētahi kēhi. He tohu te hoari o te mana o te kōti. Ko tā te uhi ko te ngākau tapatahi. Heoi anō, i te mutunga iho, he āhua kē ka puta. I ēnei rā hoki, e ai ki a Baroness Hale he tāne tonu, he Tauiwi hoki te rahinga o te hunga kaiwhakawā, arā, he “male and pale”. I te tau 1975 ko Kahurangi Augusta Wallace te wahine tuatahi i kopoua hei kaiwhakawā i Nū Tīreni. I te tau 1993 i kopoua a Kahurangi Sylvia Cartwright hei kaiwhakawā wahine tuatahi o te Te Kōti Teitei. Ahakoa he wahine te Tiati Tumuaki, ā, nōna tata nei tokowhā ngā ūpoko o te Pae he wāhine, he āhua 32% noa iho o te hunga kaiwhakawā he wāhine. Waihoki kāore i te kitea ngā kāwai matawaka o te hapori i roto i te hunga kaiwhakawā, otirā kāore kau he tauanga matawaka mō nāianei. Heoi anō, arā anō ētahi kaiwhakawā wāhine, he Māori, he Hāmoa, he Tonga hoki rātou. Kāore e kore ka āta whakaaro ngā kaiwhakawā o Nū Tīreni ki tā rātou kī taurangi. ­Ahakoa tērā, ka aweawe tonu ngā wheako me ngā uara whaiaro i ngā whakataunga, ahakoa te kaha whai a ngā kaiwhakawā kia ngākau tapatahi. Nā tērā ka whai pānga aua wheako me aua uara ki te arotake a ngā kaiwhakawā i ngā whanonga ka rerekē atu i ā rātou e rite ai, ka rerekē atu rānei i ō rātou e whakaaro ai, i ā rātou e mahi ai rānei i ngā horopaki āhua rite. Tērā pea ka hua mai ngā pōhēhētanga i te aukati kore mōhio mō te tikanga ka whāia e ētahi rōpū, me whai rānei e aua rōpū, ā, ka taikaha pea ngā whakataunga mō ngā tāngata tē whai i taua tikanga. Nā te korenga ōna o ngā kaiwhakatau whakaaro matawaka ka puta pea ngā ture aukati, hē hoki. Hei tauira ko te ture nā te kaiwhakawā i tau ai kāore kau he pāwhera i roto i te mārenatanga. Arā anō tētahi tauira, ko te tirohanga ki te Tiriti o Waitangi me te whakakorenga o te mana o te taitara Māori. He wero ki ngā tāngata katoa e mahi ana i roto i tētahi pūnaha ture, tae atu ki ngā kaiwhakawā, te mahi i ngā taunakitanga me ngā take ka whakanui i te rerekētanga ahakoa ngā rerekētanga aronga tauonioni mai, wahine mai, tāne mai rānei, ahurea mai, hāhi mai rānei. Tērā pea ka āta whakaiti tonu, ka whakaiti noa rānei, ka hāpaitia tonutia pea ngā uara me ngā tikanga hoki o tētahi iwi kotahi anake ki ngā whakataunga e puta ai i ngā hātepe pēnei. Ko te whakaaro whakamua mō te tirohanga o te hunga ka pāngia tētahi ara whakahaere i tēnei āhuatanga māori. Hei tauira, kua kī te hunga wahine Māori nā te pēhitanga mai o ngā uara o tētahi ahurea kotahi me ngā āhuatanga Karaitiana i te wā nō muri i te ūnga mai o Tauiwi i panoni ai te mana wahine Māori i roto tonu o te ao Māori. Ka tohua e rātou ētahi tauira tae atu ki ngā whakataunga a ngā kaiwhakawā e pā ana ki te moe Māori tē whai mana i waho i te Kōti Whenua Māori me te whāiti noa o te mana o taua kōti. I te ao mārama o nāianei rangi, ka hiahia tātou kia tautokona te whakaae atu ki ngā āhuatanga e pā ana ki ngā uara, ki ngā tikanga ka hāngai ki te mana wahine, me ō rātou aronga tauonioni, ō rātou iwi, hāhi hoki, hāunga ko ngā tika tangata o nāianei, ko tētahi here ā-ture kē atu rānei.

vi  Foreword He mea hiranga tēnei pukapuka nā te mea ka whakaaturia ka pēhea pea te pā o te tirohanga rerekē, ahakoa he tirohanga tū wahine, he tirohanga mana wahine rānei ki ngā hua o ngā kēhi kua kōwhiria. Engari ahakoa tē taea tēnei e te ture e hāngai ana, ka pēhea te pānga atu ki te whiriwhiri whakaaro pērā e kaha ana te whakaae te whakamārama rānei i te wahine (me ētahi atu) ka pāngia e te whakataunga. Ka whai tonu te kaupapa i te arotanga a ngā kaipānui ki ō rātou ake whakaaro me ō rātou pōhēhē ahakoa ka whakahē pea koe i ngā hua ka puta i ngā whakataunga hou. Ko te tūmanako ia, ka puta ngā whakaaro o tēnā, o tēnā e whai wāhi ana ki te pūnaha ture—ahakoa ākonga mai, rōia mai, kaiwhakawā mai, ngaio mai, kaihanga ture mai, hunga pāpāho mai, kaimahi tari kāwanatanga mai, tae atu ki te iwi whānui rānei. Mō te hunga kaiwhakawā, he mea waiwai kia hāngai ki te kī taurangi kaiwhakawā me te mana o te ture kia āta mārama ai rātou tērā pea ka puta te mariu, te hē rānei i te hātepe whakatau, ā, kia kaha rātou ka tika ki te whakakore i taua āhuatanga. Nā reira, he mahi hiranga tīmata te whai mārama ki te mariu tērā pea ka puta. Ā tōna wā pea ka āhua taurite te hunga kaiwhakawā i te urunga o ngā matawaka, ā, mā tērā e whakangaro ai te mariu i roto i ngā kaiwhakawā puta noa. Otirā me tūpato ngā kaiwhakawā kei whakakorengia tētahi mariu me te whakatū i tētahi mariu anō. Ko te takohanga matua o te kaiwhakawā ko te whakatau kēhi kia hāngai ki te ture, ahakoa ka puta pea te hua hē ki tō te kaiwhakawā whakaaro. Arā noa atu ngā kaupapa whakataunga tū wahine puta noa i te ao. Ka tino ­whakamanuhiri mātou i te āhuatanga motuhake o Nū Tīreni o tēnei tāpaetanga ki te taukumekume ā-ao. Me mihi ka tika ki ngā kaitāpae katoa, ā, ka mihia tonutia ngā ētita, arā, ko Elisabeth McDonald rātou ko Rhonda Powell, ko Māmari Stephens, ko Rosemary Hunter. The personification of Justice, Lady Justice, is based on Justicia, the Roman goddess of Justice. She is portrayed blindfolded, holding scales and a sword. The scales represent the way both sides of a case are analysed and weighed. The sword represents authority. The blindfold shows impartiality.1 But the reality is somewhat different. Even now the judiciary is, as Baroness Hale once put it, largely ‘male and pale’.2 In New Zealand our first woman magistrate, Dame Augusta Wallace, was appointed in 1975. Our first female High Court judge, Dame Silvia Cartwright, was appointed in 1993. While our Chief Justice is a woman and until recently four heads of Bench were female,3 women only comprise around 32%4 of the judiciary.5 Further, our judiciary does not reflect the

1  Sculptures of Lady Justice can be seen outside the Supreme Court of Canada, atop the Central Criminal Court (or Old Bailey) in the UK and outside the Supreme Court of Brazil. 2  Lady Hale, ‘Dux Femina Facti: A Woman Leads the Action’ (speech given at the International Association of Women Judges 12th Biennial Conference, Tanzania, 5–9 May 2014). 3  Chief Justice Sian Elias was sworn in as Chief Justice on 17 May 1999 and currently presides over the Supreme Court of New Zealand. Justice Ellen France was President of the Court of Appeal until her appointment to the Supreme Court on 22 July 2016. Justice Helen Winkelmann was the Chief High Court Judge until her appointment to the Court of Appeal on 1 July 2015 and Judge Jan-Marie Doogue is the Chief District Court Judge. 4  This calculation is based on figures taken from the Courts of New Zealand website: www.courtsofnz.govt.nz (as of 14 September 2016). 5  Although since 7 April 2016, there has been a majority of women on the Supreme Court—Chief Justice Elias, Justice Susan Glazebrook and Justice France. The first all-woman bench of the Court of Appeal sat on 7 August 2015 (President France, Justice Christine French and Justice Winkelmann sitting as a Permanent Court) and the first all-woman bench of the Māori Appellate Court sat on 17 February 2016 (Deputy Chief Judge Caren Fox, Judge Stephanie Milroy and Judge Sarah Reeves).

Foreword vii ethnic mix of the community, although current figures as to ethnicity are not available.6 There are, however, women judges who are Māori,7 Samoan8 and Tongan.9 There is no doubt that judges in New Zealand take their judicial oath seriously.10 Judgments will, however, inevitably be influenced by personal experiences and values, no matter how hard judges strive for impartiality.11 Such experiences and values will unavoidably affect how judges evaluate behaviour that, for whatever reason, differs from what they consider normal or from how they think they might act in similar circumstances.12 Unconscious bias may lead to unwarranted assumptions about how certain groups behave or should behave and harsh judgments being made of those who do not fit the stereotype.13 A lack of diversity in decision makers can lead to biased and unjust laws. One example was the judge-made law that there can be no rape in marriage.14 Another is the view taken, until recently, of the Treaty of Waitangi15 and of the extinguishment of native title.16

6  The 2013 census indicated that 93% of the New Zealand judiciary identified as European, with 10.8% i­dentifying as Māori, 1% identifying as Pacifica and 1% identifying as Asian: G Adlam, ‘Snapshot of the ­Profession—2015’ (2015) Lawtalk 859. Presumably this adds up to more than 100% as members of the judiciary identified as more than one ethnicity. 7  Judge Denise Clark (Ngāpuhi) was the first Māori woman to be appointed to the District Court on 2 October 2001. Deputy Chief Judge Fox (Ngāti Porou, Rongowhakaata) was the first Māori woman appointed to the Māori Land Court on 7 October 2000, and was appointed Deputy Chief Judge on 20 February 2010. Both Judge Clark and Judge Fox made history by being officially sworn in on marae at Ōhinemutu in Rotorua and Poho o Rawiri in Gisborne, respectively. Dame Lowell Goddard (Ngāti Kahungungu, Te Aitanga-a-Mahaki and Tūhoe) was the first Māori woman appointed to the High Court on 1 December 1995. 8  Judge Ida Malosi, who was sworn in on 24 September 2003, was the first female Samoan Judge appointed to the bench (to the Family Court in Manukau). 9  Judge Soana Moala, the first Tongan woman to become a District Court Judge, was appointed as an Acting District Court Judge on 2 September 2016. 10  The judicial oath is set out in s 18 of the Oaths and Declarations Act 1957 (NZ). Judges swear to ‘do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will’. 11  For more on unconscious bias, see K Mason, ‘Unconscious Judicial Prejudice’ (2001) 75 Australian Law ­Journal 676; R Sheard (ed), A Matter of Judgment: Judicial Decision-Making and Judgment Writing (Sydney, Judicial Commission of New South Wales, 2003) 27; C Guthrie, JJ Rachlinski and AJ Wistrich, ‘Blinking on the Bench: How Judges Decide Cases’ (2007) 93 Cornell Law Review 1; and R Graycar, ‘Gender, Race, Bias and Perspective: Or, How Otherness Colours Your Judgment’ (2008) 15 International Journal of the Legal Profession 73. See also H Spamann and L Klöhn, ‘Justice Is Less Blind, and Less Legalistic, than We Thought: Evidence from an Experiment with Real Judges’ (2016) 45 Journal of Legal Studies 255; and A Leibovitch, ‘Relative Judgments’ (2016) 45 Journal of Legal Studies 281. 12  One such example is the often-heard ‘why didn’t she just leave’ in domestic violence situations. 13  See, eg, A Summers’ reworking of Australian history in Damned Whores and God’s Police (Victoria, Penguin Books, 1994). 14  This law can be traced back to the statement of Sir Matthew Hale published in 1736: M Hale, History of the Pleas of the Crown (1736), vol 1, 629 and later upheld in dicta in R v Clarence (1888) 22 QBD 23. Marital rape was criminalised by the House of Lords and the European Court of Human Rights in the cases of R v R [1992] 1 AC 599 (HL); and SW v United Kingdom (1995) 21 EHRR 363, 1995 ECHR 52. Marital rape was criminalised in New Zealand in 1985, but prior to this, under the former s 128(3) of the Crimes Act 1961 (NZ), a man could not be convicted of rape of his wife unless at the time of intercourse there was a decree nisi of divorce or nullity or separation order. 15  The Treaty of Waitangi was once described as a ‘simple nullity’ (Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC) 78) but its inclusion by way of reference to its principles in s 9 of the State Owned Enterprise Act 1986 (NZ) was described as a ‘constitutional guarantee’ (New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA), 659 per Cooke P). See also New Zealand Maori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 321 [59] per McGrath J. 16  eg, the decision of Regina v Fitzherbert (1872) 2 NZCAR 143 held that no formal act of cession of native title to the Crown was required. This decision was most recently considered (and criticised for differing reasons) by the Supreme Court in Proprietors of Wakatu v Attorney-General [2017] NZSC 17 [303]–[330] per Elias CJ, n 745 per Glazebrook J, [845]–[851] and [878]–[879] per William Young J.

viii  Foreword Coping with evidence and issues that accentuate difference, whether based upon sexual orientation, gender, race, custom or religion is a challenge for all those who work within any justice system, including its judges. The resulting judgments that flow from such proceedings may consciously or unconsciously perpetuate stereotypes or mono-cultural values and norms. One way to manage this very human outcome includes appreciating in advance the perspective of those affected. Māori women, for example, have argued that during the colonial period the imposition of those mono-cultural values and Christian religious norms altered the status of Māori women within their own culture.17 They point to a number of examples including judicial decisions concerning customary marriages which were not recognised beyond the Native Land Court and its limited jurisdiction.18 In these more enlightened times, the acceptance of values and norms relating to the status of women, their sexual orientation, their race or their religion are all characteristics we expect to be accommodated, subject only to existing human rights norms or any other legal constraint. That is why this book is important in that it shows how a different perspective, feminist and/or mana wahine, may have affected the result of the selected cases but, even where this was not possible in terms of the applicable law, how it could have affected the reasoning in a manner that would have been more affirming or understanding of the women (and others) affected by the judgment. Even if you do not agree with the results reached in the reimagined judgments, the project still requires readers to confront their own perspectives and assumptions. This will hopefully lead to more balanced perspectives from all involved in the justice system, be they law students, counsel, judges, academics, legislators, the media, public servants or the general public. As to judges, it is vital in terms of the judicial oath and the rule of law that they recognise the possibility of bias and flawed decision making processes and do their best to eliminate them. In this regard, being made aware of possible bias is an important first step. In time a more diverse judiciary should create balance in the judiciary, helping to eliminate bias in the judiciary as a whole. But judges must take care not to replace one set of biases for another. A judge’s overriding duty is to decide cases according to the law, even if this leads to a result that is against their inclination. There have been a number of feminist judgment projects throughout the world. We ­welcome the particularly New Zealand character of this contribution to the global debate. All the contributors are to be congratulated and in particular the editors, Elisabeth McDonald, Rhonda Powell, Māmari Stephens and Rosemary Hunter. The Honourable Justice Susan Glazebrook DNZM Judge Caren Fox Ngāti Porou and Rongowhakaata 1 May 2017

17  See, eg, New Zealand Law Commission, Justice: The Experience of Māori Women (Wellington, NZLC R53, 1999). 18 See Rira Peti v Ngaraihi te Paku (1888) 7 NZLR 235 (SC); Rangi Kerehoma v Public Trustee [1918] NZGazLawRep 145, [1998] 20 GLR 583 (SC); Wi Tamahau Mahupuku [1932] NZGazLawRp 167, [1932] NZLR 1397 (SC).

PREFACE HOW TO READ THIS BOOK

Nau mai, haere mai. Welcome. The goal of this book is to provide the reader with a new perspective, or even, new ­perspectives, in the reading of New Zealand law. There are 25 judgments in this volume, each one of them a rewriting of a key, or somehow significant, judgment in New Zealand legal history from as early as 1914, and as recent as 2015. The collection reflects the interests of our contributors, and also a good spread of New Zealand case law. Nineteen of these judgments are called ‘feminist judgments’. These deploy a feminist analytical framework, and seek to uphold feminist values and understandings, broadly defined. Six of the judgments have become known during the project, somewhat colloquially, as ‘mana wahine judgments’. These judgments stand together in their use of certain techniques designed to uphold mana wahine, but also intersect with the goals of a feminist rewriting. Each judgment is fictional and identified in the commentaries (as explained below) as a ‘feminist judgment’ or ‘mana wahine judgment.’ These judgments are exercises in imagination, designed to make us see possibilities in law that, arguably, the original judges in these cases may not have seen. These judgments are written using the same tools available to the original judges. The reimagined judgments are written within the constraints, in terms of precedent, legislation, style and relevant legal and social science research, which existed at the time. There is revisionism at work; but not revisionism that ignores the parameters of the possible. These judgments are designed to sit alongside the original judgments, as if they too were delivered into the world at the same time. Before each judgment the reader will see a commentary. The commentary explains the context of the time of the original judgment, as well as some of the broader societal context beyond the original decision. The commentary illuminates the goals and methods of the judgment writer; it engages with the substance of the judgment, not always agreeing, but respecting, the judge’s perspective. Reading the commentary will help in the navigation of the judgment. As can be seen in the table of contents, judgments and commentaries have been set out under subject headings. They are not ordered strictly chronologically within each subject group. Where there is a sole mana wahine judgment in a group of judgments, that will come first. In much the same way as the commentaries in our collection contextualise the judgments, so the three introductory chapters provide context, illustration and illumination of the book as a complete project. Chapter one weaves the voices of the editorial team together as they explain their individual and collective connections to the project. Chapter two identifies some of the basic features of Māori legal thought and the New Zealand general legal

x  Preface system, particularly as an assistance to international readers. Chapter three details the journey from the international beginnings of the feminist judgments movement, through to the New Zealand developments, and also identifies feminist theory and features of feminism in action that are relevant to the rewritten judgments. Chapter three also identifies common features of the mana wahine judgments and suggests a basic framework that can assist in future judgment writing from a perspective that upholds mana wahine. These matters also feed into the possibility, as yet inchoate, of an international indigenous judgments project. The introductory pages, commentaries and judgments pertaining to mana wahine are easily identified within the collection as a whole and in total, comprise a coherent and original contribution to the development of mana wahine as a tool of theory and application.

ACKNOWLEDGEMENTS

In the way that it is said it takes a village to raise a child, a book of this nature relies on many people to take it from a tempting idea to a weighty tome. We thank the many writers, of judgments and commentaries, without whom there would have been no Te Rino. We set them an unenviable task, in terms of both the timelines required and the nature of the work we asked of them. We have all emerged, especially the feminist judges, with renewed respect for the writing skills of the decision-makers of Aotearoa New Zealand. They craft socially significant judgments under greater pressure and with less peer support than occurred in this project. And then we academics put their words under microscopes, sometimes for many years. Given the scope of our task, and the naivety with which many of us approached it, we remain very humbled by the time generously given to us by many past and present members of the judiciary, including Hon Justice Susan Glazebrook, Hon Justice Christine French, Hon Justice Helen Winkelmann, Justice Matthew Palmer, Judge Barbara Morris, Judge Caren Fox and retired family court judge, Vivienne Ullrich. As is made clear from the introductory chapters, this was a collaborative writing process, drawing on feminist (collective) methodology. It was fundamental to this way of working that we could meet face-to-face, and not just provide feedback through electronic communication. The financial support that we received from the New Zealand Law Foundation was therefore critical to the viability of the project. We thank the Board, especially the Chair, Dr Andrew Butler, as well the Director, Lynda Hagan, for the faith placed in us, and for being willing to creatively fund our mission. The Law Foundation’s grant importantly enabled us to bring to New Zealand the prime mover of the now global feminist judgments movement, Professor Rosemary Hunter. If it is not already apparent from the contents of this book, Rosemary was our touchstone and our sage. We also acknowledge the efforts of Rosemary, Dr Trish Luker and others, especially in Canada, England and Australia, whose initiatives in other jurisdictions set the ground-work which made it possible for us to excite imaginations in Aotearoa. Support in the form of references for the funding application process came from: Hon Justice Susan Glazebrook; Hon Justice Helen Winkelmann; Justice Matthew Palmer; Professor Mark Henaghan; Professor Mark Hickford; Professor Claudia Geiringer; Professor Liz Toomey; Associate Professor John Hopkins; Associate Professor Scott Optican; Janine McIntosh, Director, Institute of Judicial Studies; Wendy Aldred, Convenor of the Wellington Women Lawyers’ Association; and, Karen Feint, Convenor of the Women in Law Committee of the Wellington District Law Society. Support in the form of much needed and greatly appreciated workshop hosting was provided by: the partners of Russell McVeagh; the Wellington Women Lawyers’ Association; the School of Law, University of Canterbury; the Faculty of Law, Victoria University of Wellington; and, the Faculty of Law, University of Auckland.

xii  Acknowledgements We have all received much assistance from our colleagues in the research and writing stages of the project. Many people, including those for whom the concept of a feminist judgment was an oxymoron, agreed to peer review work in their areas of expertise. Our thanks in particular to Lida Ayoubi, Erica Burke, Sylvie Arnerich, Scott Optican and Richard Mahoney. Diana Youssif provided essential research support for judgment writers and was an accomplished recorder of the workshop discussions. The extremely talented Margot Schwass was recommended to us as someone who could turn an opinionated, fiercely independent and unwilling to be constrained group of ­practitioners and academics into writers of credible judgments. And so she did. Margot was inspirational at the February 2016 workshop, and subsequently gave of her own time to attend the August 2016 workshop and to comment on many of the first drafts. We are so very grateful. Although many of us are creative with words, we welcomed benefitting from the enviable visual design talents of Robyn Greathead, Treehouse, Sydney (for the project logo) and Julia Brooke-White Photography, Wellington (for the cover image). Invaluable and cheerful editorial assistance was provided in the final stages by Paulette Benton-Greig and Rachel Oldham-Ormiston. We also thank the team at Hart ­Publishing, and in particular Bill Asquith for welcoming this addition to the feminist judgments ­collection, and for their careful oversight in moving our precious work through the ­publication process. We thank Judge Caren Fox and Hon Justice Susan Glazebrook (yet again) for their kind words in the foreword. For the beautiful rendering in te reo we acknowledge Maakere Edwards (Mātanga Reo, Etita) and Kiwa Hammond (Tohuao and Toi Reo Māori). Finally, we acknowledge with much gratitude the unstinting support from friends and whānau, who have had to share us with this project for many months. Many have ‘lived’ the project with us, and it has been stronger for that. The editors dedicate their work on Te Rino to the Community Law centres of Aotearoa and to the lawyers, educators, administrators, support workers and volunteers throughout the country who work every day to meet the unmet legal needs of our communities in a critical and compassionate way. Royalties from this publication will go to supporting Community Law initiatives that help women to access legal support and education. Elisabeth McDonald Rhonda Powell Māmari Stephens Rosemary Hunter 1 May 2017

CONTENTS

Foreword by Hon Justice Susan Glazebrook and Judge Caren Fox��������������������������������������������v Preface�������������������������������������������������������������������������������������������������������������������������������������� ix Acknowledgements������������������������������������������������������������������������������������������������������������������� xi Notes on Contributors����������������������������������������������������������������������������������������������������������� xvii Glossary�����������������������������������������������������������������������������������������������������������������������������������xxi

Part I: Introducing Te Rino: The Feminist Judgments Project Aotearoa 1. Ko Ngā Muka o Te Rino: Threads of the Two-Stranded Rope����������������������������������������3 Rhonda Powell, Elisabeth McDonald, Māmari Stephens and Rosemary Hunter 2. Law in Aotearoa New Zealand����������������������������������������������������������������������������������������15 Māmari Stephens and Rhonda Powell 3. Introducing the Feminist and Mana Wahine Judgments����������������������������������������������25 Rosemary Hunter, Māmari Stephens, Elisabeth McDonald and Rhonda Powell Part II: Rights, Equality and Relationality Civil Rights 4. Taylor v Attorney-General [2015] NZHC 1706 Commentary: Disengaging the Disengaged: Margaret Wilson and Julia Amua Whaipooti��������������������������������������������������������������53 Judgment: Mihiata Pirini and Lisa Yarwood�������������������������������������������������������������������62 5. Brooker v Police [2007] NZSC 307 Commentary: Rights Balancing Rejected: Ursula Cheer�����������������������������������������������73 Judgment: Janet McLean�������������������������������������������������������������������������������������������������79 Social Welfare 6. Ruka v Department of Social Welfare [1997] 1 NZLR 154 Commentary: Defining a Relationship for the Purposes of State Support: Catriona MacLennan���������������������������������������������������������������������������������������������������87 Judgment: Māmari Stephens�������������������������������������������������������������������������������������������94 7. L . awson v Housing New Zealand [1997] 2 NZLR 474 Commentary: State Housing, Market Rents and Families Facing Eviction: Dean R Knight������������������������������������������������������������������������������������������������������������103 Judgment: Natalie Baird������������������������������������������������������������������������������������������������111

xiv  Contents Medical Decisions 8.

Seales v Attorney General [2015] NZHC 1239 Commentary: The Potential Interface of Gender and Vulnerability in Legal Contexts: Kate Diesfeld������������������������������������������������������������������������������125 Judgment: Joanna Manning�����������������������������������������������������������������������������������������134

9.

Hallagan v Medical Council of New Zealand HC Wellington CIV-2010-485-222, 2 December 2010 Commentary: Whose Choice, Whose Conscience?: Colin Gavaghan�����������������������143 Judgment: Rhonda Powell��������������������������������������������������������������������������������������������151

10. Re W [PPPR] (‘Re Williams[PPPR]’) (1993) 11 FRNZ 108 Commentary: Caring for the Pregnant Woman: Rosemary Hunter��������������������������171 Judgment: Holly Hedley�����������������������������������������������������������������������������������������������177 Family Relationships 11. Quilter v Attorney-General [1997] NZCA 207 Commentary: Same-Sex Marriage and the Marriage Act: Wendy Aldred�����������������187 Judgment: Clare Abaffy������������������������������������������������������������������������������������������������193 12. AMO’H v AJO’H (‘Caldwell v Caldwell’) [2010] NZFC 48 Commentary: The Case of the Missing Woman: Erin Ebborn����������������������������������205 Judgment: Ruth Ballantyne������������������������������������������������������������������������������������������211 Relationship Property 13. V v V [2002] NZFLR 1105 Commentary: A Fair Share of the Pavlova?: Vivienne Crawshaw and Khyati Shah����������������������������������������������������������������������225 Judgment: John Adams�������������������������������������������������������������������������������������������������234 14. Lankow v Rose [1995] 1 NZLR 277 Commentary: Property Division on the Breakdown of a De Facto Relationship: Nicola Peart and Kyla Mullen�����������������������������������������������������������245 Judgment: Mark Bennett����������������������������������������������������������������������������������������������252 Employment 15. Director of Human Rights Proceedings v Goodrum [2002] NZHRRT 13 Commentary: The Challenge of Proving Discrimination in the Face of Bias and Gender Stereotyping: Gayathiri Ganeshan and Sam Bookman����������������������265 Judgment: Selene Mize�������������������������������������������������������������������������������������������������271 16. Air Nelson Limited v C [2011] NZCA 466 Commentary: She Said, He Said: Annick Masselot�����������������������������������������������������287 Judgment: Jenny Catran and Martha Coleman�����������������������������������������������������������294

Contents xv Commercial Relationships 17. Stephens v Barron [2014] NZCA 82 Commentary: Should Company Law Principles Affect Duty of Care Analysis?: Liesle Theron�������������������������������������������������������������������������������309 Judgment: Victoria Stace����������������������������������������������������������������������������������������������316 Part III: Land and Natural Resources Customary Rights 18. Bruce v Edwards [2002] NZCA 294 Commentary: Taonga Tuku Iho: Jacinta Ruru�����������������������������������������������������������329 Judgment: Kerensa Johnston and Mariah Hori Te Pa��������������������������������������������������336 19. Waipapakura v Hempton (1914) 33 NZLR 1065 Commentary: Whitebait for the People: John Dawson����������������������������������������������347 Judgment: Emma Gattey����������������������������������������������������������������������������������������������354 Environment 20. Squid Fishery Management Company Ltd v Minister of Fisheries CA39/04, 7 April 2004 Commentary: An Ecofeminist Approach to the Impact of Fisheries on Sea Lion Mortality: Joanna Mossop�������������������������������������������������������������������363 Judgment: Nicola Wheen���������������������������������������������������������������������������������������������370 21. West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87 Commentary: Broadening an Ethic of Care to Recognise Responsibility for Climate Change: Catherine Iorns����������������������������������������������������������������������389 Judgment: Estair van Wagner��������������������������������������������������������������������������������������398 Part IV: Crime Sexual Offending 22. R v S [2015] NZHC 801 Commentary: Reasonable Grounds to Believe an Unconscious Woman is Consenting?: Elisabeth McDonald�����������������������������������������������������������������������425 Judgment: Paulette Benton-Greig��������������������������������������������������������������������������������432 23. R v Sturm [2004] 1 NZLR 570 Commentary: ‘Well, What Did You Think Would Happen?’: Cassandra Mudgway������������������������������������������������������������������������������������������������447 Judgment: Sarah Croskery-Hewitt�������������������������������������������������������������������������������455 24. Vuletich v R [2010] NZCA 102 Commentary: When is Sexual Violence Against Adults Unusual?: Elisabeth McDonald�������������������������������������������������������������������������������������������������463 Judgment: Carissa Cross�����������������������������������������������������������������������������������������������469

xvi  Contents Defences 25. Police v Kawiti [2000] 1 NZLR 117 Commentary: Kāwiti at the Centre: Julia Tolmie and Khylee Quince������������������������481 Judgment: Khylee Quince and Julia Tolmie�����������������������������������������������������������������489 26. R v Wang [1990] 2 NZLR 529 Commentary: Finding a Plausible and Credible Narrative of Self-Defence: Lexie Kirkconnell-Kawana and Alarna Sharratt�������������������������������497 Judgment: Brenda Midson�������������������������������������������������������������������������������������������504 Sentencing 27. R v Shashana Lee Te Tomo [2012] NZHC 71 Commentary: The Truth About Sentencing Māori Women: Linda Hasan-Stein and Valmaine Toki��������������������������������������������������������������������513 Judgment: Valmaine Toki���������������������������������������������������������������������������������������������522 28. R v Taueki [2005] NZCA 174 Commentary: Sentencing Guidelines for Domestic Violence: Yvette Tinsley�����������531 Judgment: Frances Gourlay������������������������������������������������������������������������������������������539

NOTES ON CONTRIBUTORS

Clare Abaffy is a solicitor for the New Zealand Air Line Pilots’ Association Industrial Union of Workers Incorporated. John Adams is a poet, a retired family court judge, and a PhD candidate in experimental feminist poetry at the University of Auckland. Wendy Aldred is a barrister at Central Chambers, Wellington. Natalie Baird is Senior Lecturer in the School of Law, University of Canterbury. Ruth Ballantyne is Professional Practice Fellow in the Faculty of Law, University of Otago. Mark Bennett is Senior Lecturer in the Faculty of Law, Victoria University of Wellington. Paulette Benton-Greig is an independent researcher and a doctoral candidate at the ­University of Auckland. Sam Bookman is an LLM student at Harvard Law School, previously a graduate of the University of Auckland. Jenny Catran is Crown Counsel at Crown Law, Wellington. Ursula Cheer is Professor and Dean of the School of Law, University of Canterbury. Martha Coleman is a barrister at Mission Chambers, Wellington. Vivienne Crawshaw is a barrister at Hobson Chambers, Auckland. Sarah Croskery-Hewitt is Community Lawyer/Rōia Hapori at Community Law Wellington and Hutt Valley. Carissa Cross is a solicitor at Meredith Connell, Wellington. Kate Diesfeld is Professor of Health Law in the Department of Public Health, Auckland University of Technology. John Dawson is Professor in the Faculty of Law, University of Otago. Erin Ebborn is Principal of Ebborn Law, Christchurch. Gayathiri Ganeshan is an advisor at the Ministry of Justice. Emma Gattey is a junior barrister at Thorndon Chambers, Wellington. Colin Gavaghan is Associate Professor at the University of Otago. Frances Gourlay is a junior prosecutor at the Manukau Crown Solicitor’s Office.

xviii  Notes on Contributors Linda Hasan-Stein is a research assistant in the Faculty of Law, University of Waikato. Holly Hedley is Senior Associate in the Health Law team of Buddle Findlay New Zealand Lawyers. Mariah Hori Te Pa is a recent law and arts graduate from Victoria University of Wellington and is currently working at the Ministry of Justice. Mariah is of Muaūpoko, Ngāti Raukawa and Ngāti Rārua descent. Rosemary Hunter is Professor of Law and Socio-Legal Studies in the School of Law, Queen Mary University of London. Catherine Iorns is Reader in the Faculty of Law, Victoria University of Wellington. Kerensa Johnston is Chief Executive of Wakatū Incorporation. Kerensa is of Ngāti Tama, Ngāruahine and Ngāti Whāwhakia descent. Lexie Kirkconnell-Kawana is a recent graduate of the Faculty of Law, Victoria University of Wellington and currently works in media regulation. She is of Ngāi Tahu and Ngāruahine descent. Dean R Knight is Senior Lecturer in the Faculty of Law, Victoria University of Wellington. Elisabeth McDonald is Professor in the School of Law, University of Canterbury. Joanna Manning is Professor in the Faculty of Law, University of Auckland. Annick Masselot is Associate Professor in the School of Law, University of Canterbury. Catriona MacLennan is a barrister, journalist, author, report writer, television presenter, media commentator and project director. Janet McLean is Professor in the Faculty of Law, University of Auckland. Brenda Midson is Senior Lecturer in the Faculty of Law, University of Waikato and the ­Editor of the New Zealand Law Journal. Selene Mize is Associate Professor in the Faculty of Law, University of Otago. Joanna Mossop is Senior Lecturer in the Faculty of Law, Victoria University of Wellington. Cassandra Mudgway is Lecturer in the Auckland University of Technology Law School. Kyla Mullen is a research assistant in the Faculty of Law, University of Otago. Nicola Peart is Professor in the Faculty of Law, University of Otago. Mihiata Pirini is Crown Counsel at Crown Law. She is of Ngāti Tūwharetoa and Whakatōhea descent. Rhonda Powell is Lecturer in the School of Law, University of Canterbury. Khylee Quince is Senior Lecturer in the Auckland University of Technology Law School. Khylee is from the iwi of Ngāpuhi, Ngāti Porou and Ngāti Kahungunu. Jacinta Ruru is Professor in the Faculty of Law, University of Otago. Jacinta is of Raukawa and Ngāti Ranginui descent.

Notes on Contributors xix Alarna Sharratt is a recent graduate of the Faculty of Law, Victoria University of Wellington and currently works for the Office of Film and Literature Classification. Khyati Shah is a recent graduate of the Faculty of Law, University of Auckland. Victoria Stace is Lecturer in the Faculty of Law, Victoria University of Wellington. Māmari Stephens is Senior Lecturer in the Faculty of Law, Victoria University of Wellington. Māmari is of Te Rarawa and Ngāti Pākehā descent. Liesle Theron is Partner at Meredith Connell, Wellington. Yvette Tinsley is Reader in the Faculty of Law, Victoria University of Wellington. Valmaine Toki is Associate Professor in the Faculty of Law, University of Waikato. She affiliates to Ngāpuhi, Ngāti Wai and Ngāti Whātua. Julia Tolmie is Professor in the Faculty of Law, University of Auckland. Estair Van Wagner is Assistant Professor in Osgoode Hall Law School, previously a L ­ ecturer in the Faculty of Law, Victoria University of Wellington. Julia Amua Whaipooti is a recent graduate of the Faculty of Law at Victoria University of Wellington and is a descendent of Ngāti Porou. Nicola Wheen is Associate Professor in the Faculty of Law, University of Otago. Margaret Wilson is Professor in the Faculty of Law, University of Waikato. Lisa Yarwood is Senior Legal and Policy Advisor at the New Zealand Law Commission.

xx 

GLOSSARY

Aotearoa common Māori name for the North Island, and now also for the whole country ariki senior chiefly bloodlines, representatives of such bloodlines aroha compassion, love, forgiveness auē cry of lament hapū customary descent group. Independent Māori kin-based collective, descended from a named ancestor, pregnant hara breach, offence hei as, as a means of inanga whitebait iwi bones, people descended from a single named ancestor kai moana seafood kaitiaki guardian, steward, care-taker kaitiakitanga guardianship, often exercised over natural resources karakia incantation, prayer karanga call of welcome, or reply, performed by women during the pōwhiri kaumātua elder knowledgeable in Māori knowledge, or sometimes, just older person kaupapa topic, plan, purpose, issue, claim kaupapa Māori a method, framework or approach that places Māori people, and practices at the centre of a given initiative or project kupu whakatau judgment mahinga kai customary food-gathering places and practices mana standing, prestige, authority, power manaakitanga generosity, hopitality mana wahine the prestige and authority of women mana whenua those who have authority over a specified area of land marae a traditional complex including a (often carved) meeting house, a ritual space for formal ceremony, and separate dining facilities

xxii  Glossary matua rau collective nurturance of children maunga mountain maunga tapu sacred mountain, often restrictions of access will apply mihi greeting, acknowledgment moko, mokopuna grandchild, descendent noa freedom from restriction or uncertainty Pākehā New Zealander of European descent, sometimes refers to European migrants Papatūānuku earth mother pōwhiri ritual of welcome rangatira leader, chief rangatiratanga chiefly authority, self-determination, sovereignty raupatu confiscation (usually of land) rōpū group rōpū whaimana wahine Mana wahine working group take claim, basis of claim to land take raupatu claim based on confiscation tangata whenua people of the land taonga valued item, heirloom, possession. May also extend to intangible matters, so the Māori language is considered a taonga taonga tuku iho heirloom, something handed down, cultural property, heritage tapu restricted, prohibited; states of prohibition or restriction, sacred tupuna grandparents, other relatives of one’s grandparents’ generation, ancestors taunaha whenua (declaration of) claim to land te ao Māori the Māori world te ao marama the world of light te reo Māori the Māori language Te Waipounamu name of the South Island Tiriti Treaty; the Treaty of Waitangi turuturu whatu weaving pegs utu cost, response, to repay, to compensate, seeking equilibrium wāhi/waahi tapu sacred or restricted place

Glossary xxiii wahine woman waiata song waiū breastmilk, nurture and sustenance whaikōrero speeches given during formal, ritual occasions such as pōwhiri whaimana have authority, uphold status whakaaro think, thought, consider, opinion whakapapa genealogy, lines of descent whakatauākī saying, proverb whakawhanaungatanga to create connections, warm relationships whāngai to feed, adoption whānau extended family group, to give birth whanaunga relation, kin whanaungatanga kinship, fellowship, connectedness whānau whānui wider family whenua land, placenta whenua tapu land that is sacred, and thus restricted in its use whenua tapuna ancestral land

xxiv 

Part I

Introducing Te Rino: The Feminist Judgments Project Aotearoa

2 

1 Ko Ngā Muka o Te Rino Threads of the Two-Stranded Rope RHONDA POWELL, ELISABETH McDONALD, MĀMARI STEPHENS AND ROSEMARY HUNTER E mihi kau ana mātou ki a tātou katoa, wahine mā, tāne mā, ki ō tātou maunga, awa, moana hoki, ki ō tātou papakāinga nō tēnei whenua, nō whenua kē hoki.

It is a daunting thing to decide to embark on a project that will seek to communicate and uphold the mana of women, and of feminism. Daunting, perhaps because to do so requires we identify the parameters and scope of our own approaches, and invites critique that may shave a little close to the bones of who we hope we are. But let us begin. Heoi anō … karawhiua.

Beginnings EM: My involvement in this project began in York, Western Australia in July 1991. I was attending a teaching workshop while six months pregnant with my second child, G ­ eorgia. Another young academic was also there; the now internationally renowned Rosemary Hunter. Rosemary and I met intermittently over the years, including while she was Dean at Griffith University—but the most significant meeting for this story was at the Law and Society Conference in Vancouver in September 2013. A panel at that conference, of which Rosemary was a member, discussed a number of feminist judgments projects, including the most recent (at that time) Australian contribution. Following my discussions with ­Rosemary at the conference, she generously offered, as she regularly does for many colleagues and across a vast range of subject areas, to assist the development of a similar piece of work in Aotearoa. At that stage, I politely thanked her, thinking inwardly—could I possibly find another 50 feminist lawyers, ready to out themselves as such, in our small jurisdiction? Given that perceived challenge, as well as other commitments, I set the idea aside. Also in 2013, however, I was involved with the Wellington Women Lawyers Association, marking 100 years since the graduation of Harriett Vine, the first woman to graduate from Victoria University’s law school. Through that initiative I met the Convenor of the Association, barrister Wendy Aldred. Some months after the launch in 2014 of the Special Issue of the ­Victoria University of Wellington Law Review, in honour of Harriett Vine, Wendy

4  Powell, McDonald, Stephens and Hunter contacted me, very excited to have received from the publisher a copy of Australian Feminist Judgments: Righting and Rewriting Law.1 ‘We should do this here’, she urged. So, I thought— that makes two of us … A little later Lynda Hagen from the Law Foundation2 was visiting Victoria’s law school. I had a few big picture things to discuss with her, and in order to show I also was thinking about a do-able piece of research, I mentioned I had been ­pondering beginning a feminist judgments project. ‘Interesting’, said Lynda. ‘A young academic in Canterbury has also talked to me about that. I will put you two in touch.’ She did. My first virtual meeting with the energetic Dr Rhonda Powell occurred on 27 May 2015. And as part of what I like to now think of as a second strand to the story that began in 1991, Rhonda gave birth during the course of this project to an adorable son, George. RP: I first learned of the feminist judgment projects from Julie McCandless, one of the leaders of the Northern/Irish feminist judgments project. I met Julie at the Socio-Legal Studies Association conference at the University of Warwick in April 2015 and arranged to catch up with her in London to learn more about her work on surrogacy. Over lunch at St Pancras International Station, Julie told me all about the project which led to the edited collection Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity.3 I let my imagination run away with me and started thinking about repeating the project in Aotearoa. Back home in Christchurch, I ran the idea past a few of my colleagues, all of whom said they would participate. Little did they know I really did mean to put this plan into action. I then contacted Lynda Hagan from the New Zealand Law Foundation and we had a strategic conversation about successful funding applications. Sometime later, Lynda contacted me out of the blue to introduce me to Elisabeth McDonald. This was fantastic for me because Elisabeth had both the seniority and the connections to persuade and motivate sufficient numbers of people to participate. I may not have gotten the project off the ground on my own. But a project like this is all about relationships so it was important that we would get on well. As luck would have it, we did (and still do). So we set about applying for funding, and persuading others to join us in our enterprise, starting with the astute and personable Māmari Stephens and the formidable Rosemary Hunter. MS: I think I started preparing for this project in 1990 when I joined Te Whare ­Rokiroki Wellington Māori Women’s Refuge as a very green and very culturally unsure young Te Rarawa woman. I was born and raised in Christchurch. I never met my Māori father until I was 15, and Dad had no time for ‘bloody Maoris’ anyway, so my introduction to things Māori came by way of my Pākehā mother. Beyond what she could teach me, I had started on the road in my 20s, as so many young urban people do, by learning Māori on a course, by having ‘marae experiences’. By 1990 I had started using my second name Māmari, rather than my first name Meredith. At the time, Refuge was looking for volunteers, and I discovered, much to my amazement, that there was a separate refuge for Māori women and their kids. I didn’t quite understand why there needed to be a separate refuge, or separate training or separate thinking about violence in Māori families. But with my new name I was gently pushed to them, and 1  H Douglas et al (eds), Australian Feminist Judgments: Righting and Rewriting Law (Oxford, Hart Publishing, 2014). 2  The Law Foundation New Zealand, www.lawfoundation.org.nz. 3  M Enright, J McCandless, A O’Donoghue (eds), Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (Oxford, Hart Publishing, 2017).

Ko Ngā Muka o Te Rino: Threads of the Two-Stranded Rope 5 I came to learn the value of Māori having space to do important things in Māori ways without needing the permission, oversight or approval of Pākehā women. Sometimes that separation between refuges made for hard conversations and conflict. Over the course of my 18 years in Refuge, we found ourselves explaining again and again about the Treaty relationship, and about how Māori needed to have the freedom to provide support to families in our way, to operate according to mana wahine, even if we didn’t define that phrase to ourselves at the time. Mana wahine was just what we were doing. We were Māori women doing things in a Māori way to help Māori whānau. We learned to value being Māori women, when some of us grew up hating our own Māoriness. For a woman like me, still scared of walking into a room full of brown faces, Te Whare ­Rokiroki gave me that tūrangawaewae, that place to stand, well before I even really understood who or what my own hapū was. To them I was just Māmari. Just a normal Māori woman. That is a gift I can never repay.4 Fast-forwarding then to September 2015, and the invitation extended to me by ­Elisabeth in the first instance to join this project. What I was especially attracted to was the free hand I would be able to have to pull together a contribution to the project that would, in a sense be able to stand on its own, as a distinct articulation of an application of mana wahine in a legal context. When I put the call out, I was glad to see the support that this idea generated. One of the highlights for me, in my involvement was a workshop I ran for Māori students, male and female, in mid-2016 on mana wahine; asking students to re-evaluate a case looking at it through a mana wahine lens. More than anything else, that workshop was a lesson for me in how we can all apply different ways of looking at the law. We don’t need qualifications of learning or ethnicity or gender, so much as a commitment to being open. Without openness, nothing can really change for the better, but plenty can change for the worse. RH: Since Elisabeth has mentioned our meeting in WA in 1991, I guess that’s where the project began for me too. All of the feminist thinking, reading, discussing, arguing and writing I did before and after 1991 led me eventually, in September 2007, to a conference in Durham, in the north of England, where I had been invited to conduct an interview before an audience of academics with Baroness Hale, then the only woman on the UK House of Lords, and a noted feminist academic, law reformer and judge. I began the interview by describing how, as a law student, I had been inspired by her book Women and the Law,5 one of the very first feminist legal texts. Later, at the conference dinner, I was chatting to Clare McGlynn who was on the conference organising committee and responsible for my invitation. Clare said she and her Durham colleague Erika Rackley were interested in the project then being done in Canada rewriting Canadian Supreme Court judgments from a feminist perspective. She asked if I was interested in joining them in setting up an English project on the same lines. Was I ever!! I knew about the Canadian project. I had met two of its members, Gwen Brodsky and Shelagh Day, in London in January that year and had a long and exciting discussion about what they were doing. In July that year, at a different c­ onference, 4  For analysis of mana wahine and Te Whare Rokiroki and the refuge movement, see TV Turner, ‘Tu Kaha: Nga Mana Wahine Exploring the Role of Mana Wahine in the Development of Te Whare Rokiroki Maori Women’s Refuge’ (Unpublished Masters Thesis, Victoria University of Wellington, 2007). 5  S Atkins and B Hoggett, Women and the Law (Oxford, Basil Blackwell, 1984).

6  Powell, McDonald, Stephens and Hunter I had tried unsuccessfully to persuade an international group of feminist scholars to embark on a similar project. Rather like Elisabeth and Rhonda, Clare and I had had the same idea at the same time and just needed to find each other to make it happen. The three of us set to work drafting a project outline and call for expressions of interest. We received a great response from English feminist legal scholars and held our first workshop in Durham in April 2008. The month before, I had the privilege of attending the launch of the first six judgments of the Women’s Court of Canada, which fired me up with enthusiasm and ideas. After the workshop we wrote a grant application and book proposal, obtained funding, held further workshops, and eventually saw our book of 23 rewritten judgments, Feminist Judgments: From Theory to Practice,6 published in September 2010. That book, and our project, have had an amazing reception, and have in turn inspired a series of further feminist judgment projects. Earlier in 2010 I was contacted by my old colleague from Griffith University, Heather Douglas, now at the University of Queensland. She was part of a feminist reading group in Brisbane, and the group were keen to set up an ­Australian project. They invited me to speak at a workshop with interested Australian academics in ­Brisbane in December 2010, and we decided to submit a funding application to the ­Australian Research Council, which was ultimately successful, and resulted in the book ­Elisabeth has referred to. I agreed to participate as one of the organisers of the Australian project because I had enjoyed the English experience so much—the process was genuinely collaborative and the results were fascinating. I loved reading, debating and editing the judgments, helping to craft them into something that was rigorously legal but also transformative. I wanted to keep thinking about feminist judgments and judging, and I wanted to encourage and support more of this work. I was happy to contribute my experience of the English project and to explore new ways in which the methodology might develop. This is also why, when Elisabeth broached the subject of an Aotearoa project with me in Vancouver in 2013, I was enthusiastic and offered my support, as I have done with other projects as well.7 As with those other projects, I thought this might involve some speaking at workshops and providing the benefit of my experience and copies of project documents to the organisers. I didn’t expect to be asked to become one of the editors of the collection and hence to be contributing to this chapter. It was a generous request because unlike my Australian connections, I don’t have a history in New Zealand and have never worked on New Zealand law. Nevertheless, I didn’t need much persuasion.

Method, Milestones and Mana Wahine Getting Support and Funding EM and RP: In late June 2015, we began exploring the possibility of a feminist judgments project happening in Aotearoa. What help did we need? Were there enough like-minded 6 R Hunter, C McGlynn and E Rackley (eds), Feminist Judgments: From Theory to Practice (Oxford, Hart ­Publishing, 2010). 7 As well as being a prime mover on the UK feminist judgments project, Rosemary has assisted with the ­Northern/Irish feminist judgments project, the feminist international judgments project, the Indian feminist judgments project, the US feminist judgments project: K Stanchi, L Berger and B Crawford, Feminist Judgments: Rewritten Opinions of the United States Supreme Court (New York, Cambridge University Press, 2016), and the children’s rights judgments project.

Ko Ngā Muka o Te Rino: Threads of the Two-Stranded Rope 7 lawyers in the country? Would we get funding for research that staunchly used the word feminist? In July 2015, while on leave, Elisabeth was able to meet with Rosemary and Dr Trish Luker (University of Technology Sydney) to discuss their roles in the Australian feminist judgments project. Rhonda also met with Trish later in the month in New Zealand. The assistance and advice given by both Rosemary and Trish was invaluable and gave us the necessary confidence to seek support from senior academics and members of the judiciary, in order to strengthen our case for funding. Our funding application to the Law Foundation was preceded by us receiving offers of contributions from another 20 law academics, whom we approached individually. Sixteen of these have their work published in this book, with four needing to withdraw for workload reasons. The Director of the Institute of Judicial Studies, Janine McIntosh, suggested we use the very gifted Margot Schwass to train the feminist ‘judges’ on how to write a judgment, and we asked the Law Foundation for resources to allow her involvement. We also asked for sufficient funds to bring Rosemary to New Zealand to participate in the three workshops we planned to run. The first was to be in Wellington in February 2016, on judgment writing. Two others were planned for Wellington and Christchurch in late August/ early September 2016—with all contributors (judgment and commentary writers) attending at least one workshop to discuss their first drafts. We received letters of support for our application from a range of legal luminaries, and remain grateful for their words, and humbled by the level of trust expressed in our ability to pull such a piece of work together. Most significantly, no-one we asked declined to support the project by writing a reference. Our challenge, as it turns out, was to convince the Law Foundation of the importance of a physically collaborative writing project through the workshops, as well as (in our view) the vital attendance of Rosemary at the workshops. In this regard, Trish Luker was a crucial voice and wrote, at very short notice, a compelling case for the involvement of Rosemary in the project, including by participating in the workshops in person. We were very pleased to learn on 21 September 2015 that we had been granted funding to allow the project to proceed—including for the express purpose to bringing Rosemary to New Zealand twice. In late September 2015, a call for contributors was circulated to the six New Zealand law schools; the women lawyers associations in Auckland, Wellington, Christchurch and ­Dunedin; the feminist law groups in Wellington and Christchurch; the Women in Law Committee of the Wellington District Law Society; our own networks; and to the profession more widely, through the New Zealand Law Society’s e-newsletters. The project was also publicised through articles in LawTalk,8 Council Brief9 and the Auckland District Law Society’s newsletter.10 The call for contributions is reproduced here, as it represents our thoughts about the project and its aims at that time: What if a group of scholars were to write the “missing” feminist judgment in key cases? Can we put theory into practice in judgment form? What would these judgments look like? What impact would they have? What lessons would we learn?

8  ‘Rewriting

Judgments from Feminist Viewpoint’ 875 LawTalk (8 October 2015). E McDonald and C Sawyer, ‘Feminist Judgments Aotearoa Project’ 451 Council Brief (October 2015) 1. 10  ‘New Research Project to Look at New Zealand Judgments from a New Angle’ 36 LAWNEWS (16 October 2015) 5. 9 

8  Powell, McDonald, Stephens and Hunter We are seeking scholars to contribute to this Law Foundation funded work. Contributors need not identify as ‘feminist’, nor as female, but must be willing to commit to a research endeavour that will challenge them to think and write about the law in a different way. This is a dynamic and innovative project in which scholars (whether academics or practitioners) will write alternative judgments in a number of significant domestic cases across a broad range of legal issues. These new judgments will operate as both a critique of common law method as well as a practical demonstration of how different ways of approaching a decision making task is possible. Judgments may be written either by individual authors or jointly by two or more authors. The cases need not be recent, but must be important decisions that would benefit from a feminist analysis, or from a mana wahine perspective. The cases can be from any level, including decisions of tribunals. Alongside each judgment, another scholar will write a commentary. This will situate the original judgment in its legal, social and political context. The feminist judges will be working with established legal method that existed at the time the decision was originally made, including customary legal perspectives, and simulated practical constraints on decision-making (such as the socialscience­research available at the time and the prevailing rules of precedent) to produce ‘authentic’ judgments. This project is inspired by the feminist projects successfully undertaken in other jurisdictions, but will be unique given the social, cultural and legal context of Aotearoa. The use of ‘Aotearoa’ in the project title is deliberate. It is essential that this work contains the critical voices of Māori scholars and those already inspired by the potential of this project are committed to exploring how this critical exercise can be undertaken from a mana wahine perspective.

We did not want to limit the range of contributors, nor the voices they would bring to the project.11 We received offers from a range of people, including current undergraduate law students, corporate lawyers, judges’ clerks, policy workers, barristers, academics, Crown lawyers, PhD students and a retired family court judge who bravely offered to rewrite one of his own decisions. This project threw out an intentionally wide net and the book therefore includes contributions from a diverse group of legally trained authors—in terms of age, gender, sexuality, religion, politics, race and cultural identity. Importantly, we received offers to contribute by members of every New Zealand law school. If we had any specific hopes about the authors or the judgments to be re-written it was that most of the leading women academics in Aotearoa would contribute in some way, and that a range of areas would be covered. As with other projects, we wanted to demonstrate that in all areas (not just those that have historically been the focus of feminist critique, such as criminal, employment and family) it is possible to analyse and apply the law from a feminist perspective, without breaching legal conventions and constitutional principles. It was heartening to us that with some exceptions, who felt unable to realistically contribute because of other commitments, most senior women law academics in New Zealand offered to be involved in some way. We were very happy that the call had excited men about the project as well as proving attractive to many young women practitioners and academics willing to be publically part of a feminist initiative, despite being early in their careers.

11 We did receive offers to contribute from non-lawyers. Although we were interested in those academics working in related fields (eg, bioethics, criminology and political science) we did not end up finding suitable ­commentary roles for them.

Ko Ngā Muka o Te Rino: Threads of the Two-Stranded Rope 9 MS: Our project’s point of difference was always to be the mana wahine strand. Therefore ensuring we had good representation of Māori women scholars and practitioners was paramount to the success of this innovation as a whole. I joined the project in ­September 2015, and sent emails to all Māori women legal academics asking for their participation. The community of Māori legal academics is a small one, Māori women legal academics even smaller. Khylee Quince, Jacinta Ruru, and Valmaine Toki responded almost immediately. Including me, we had half of the available Māori women legal academics, not a bad strike rate. Each of us nominated practitioners and students to be part of the mana wahine strand, and during 2016 the group was joined by Kerensa Johnston, Mariah Hori Te Pa, Julia Whaipooti and Mihiata Pirini. We also invited Lisa Yarwood, Professor John Dawson, Linda Hasan-Stein and Emma Gattey, all of whom demonstrated commitment to the upholding of an approach based on mana wahine. Together we developed a distinct strand, or muka of a two-stranded rope; a rino. The notion of the project as a two-stranded rope was born. EM and RP: In addition to the core contributors we received a wide range of ideas about suitable cases, including from people, such as Katherine Sanders and Ana Gilling, who were not able to contribute but generously shared research ideas from their specialist areas. We explored each of the ideas with the proponents: sometimes suggesting a different case that would allow similar issues to be explored, sometimes connecting two people wishing to work on the same case, sometimes encouraging them to think more creatively about the case they had identified. In a couple of areas we had willing experts to whom we suggested a case that might work for them. Although during the course of the project some of the author teams and the cases have changed, this book contains 25 re-imagined judgments spanning a range of decision-making bodies and subject matter. They are a credit to the writers and their commitment to the project’s methodology and demanding timelines.

Workshops, Writing and Whakaaro MS: It is clear that in a project such as this, mana wahine cannot be detected solely from the words that end up on the pages of the judgments and commentaries. A mana wahine approach encompasses not only the output of research and intellectual effort, but the process by which such outputs emerge into te ao marama (the world of light). How then, did the judges and commentators of the mana wahine strand respond to the challenge posed to operate from a mana wahine perspective? From the workshops held in mid 2016 we were guided by a statement made by Leonie Pihama in 2001:12 Mana wahine refers to Māori women’s analysis that encompasses the complex realities of Māori women’s lives. It is defined within cultural terms and in a context that affirms fundamental Māori values and the ways in which they are negotiated. As such mana wahine bring to the fore a need for analysis that will reclaim Māori worldviews in terms of gender and gender relationships. 12  L Pihama, ‘Tihei Mauriora Honouring our Voices—Mana Wahine as a Kaupapa Māori Theoretical Framework’ (Unpublished PhD Thesis, University of Auckland, 2001) 236.

10  Powell, McDonald, Stephens and Hunter We understood that whatever we were to do in our judgment and commentary writing process, we were to bring the complex and contradictory lives of Māori women to the fore; to place Māori women at the centre of our writing and thinking, to legitimise Māori ways of thinking and cultural practice.13 We would bear in mind that our work in this paradigm was somehow intended to benefit Māori women in particular,14 but ultimately all Māori.15 EM and RP: One of the unique features of this project was the requirement that participants meet together to ‘workshop’ their cases. We held a total of six workshops during the course of the project. The first of these was a judgment writing workshop hosted by Russell McVeagh in Wellington, in February 2016. In order to keep the size manageable, only judgment-writers were invited to this workshop. We were very fortunate to be joined by Justice Susan Glazebrook, Justice Christine French, Judge Caren Fox and Judge Barbara Morris as well as retired family court judge Vivienne Ullrich. The four present-day judges each shared their experiences and advice about judgment-writing, each added another dimension to the discussion. We used Law Foundation funding to bring Rosemary from the UK to share her vast experience of feminist judging and introduce us to the ways in which a judge can be a feminist,16 and to engage Margot Schwass who has expertise in training judges how to write judgments. Margot talked about the purpose and audience of judgments, the importance of structure, why an issues-based structure works well for writers and readers as it results in a clear, succinct and readable judgment, and how to go about writing an issues-driven judgment. To put theory into practice, we each attempted an introduction followed by a statement of issues for the case of R v Neho17 and discussed these in groups. The judgment writing workshop was exhausting but exhilarating. The project was finally off the ground. After the workshop, we circulated Margot’s handouts on judgment writing and style tips, our notes from the workshop, notes about how to be a feminist judge, and notes from the mana wahine strand outlining their initial ideas about their unique contribution. Participants then prepared their draft judgments and commentaries. We encouraged feminist judges and commentators to work collaboratively and to produce mutually reinforcing pieces. In some instances, given the range of participants, we deliberately paired a particularly experienced person with an inexperienced one, and we hoped that they would form a mentor/mentee relationship. We engaged Diana Youssif, an undergraduate law 13  A Ormond, F Cram, and L Carter, ‘Researching our Relations: Reflections on Ethics and Marginalisation’ (2006) 2 AlterNative: An International Journal of Indigenous Peoples 174, 186. 14  K Irwin, ‘“Challenges,” to Māori Feminism’ (1990) 182 Broadsheet 220 in TW Paul, ‘A Mana Wahine Critical Analysis of New Zealand Legislation Concerning Education: Implications for Addressing Māori Social Disadvantage’ (Unpublished Masters Thesis, Victoria University of Wellington, 2014). 15  Pihama, ‘Tihei Mauriora Honouring our Voices’ (n 12) 233. 16  See R Hunter, ‘Can Feminist Judges Make a Difference?’ 15 International Journal of the Legal Profession 7; R Hunter, ‘An Account of Feminist Judging’ in Hunter et al (eds), Feminist Judgments (n 6) 30; R Hunter, ‘Justice Marcia Neave: Case Study of a Feminist Judge’ in U Schultz and G Shaw (eds), Gender and Judging, Onati International Series in Law and Society (Oxford, Hart Publishing, 2013) 399; R Hunter, ‘More Than Just a Different Face? Judicial Diversity and Decision-Making’ (2015) 68 Current Legal Problems 119. 17  R v Neho [2009] NZCA 299, [2013] NZAR 464.

Ko Ngā Muka o Te Rino: Threads of the Two-Stranded Rope 11 student at the University of Canterbury to act as a research assistant for participants. We divided the cases between three of the editors (Elisabeth, Rhonda and Māmari) for coordination purposes, with Rosemary providing regular support. First drafts were due in midAugust and circulated to other participants. In late August and early September we held two more workshops to discuss the first draft judgments and commentaries. This was part of the collaborative methodology of the project. Each piece of writing was authored or co-authored by named individuals but the participants as a whole had the opportunity to offer improvements to one another’s work. We split the cases into two groups so that half of the cases would be workshopped in ­Wellington and half in Christchurch. The division was based on a range of factors, including an attempt to minimise travel if we could, participants’ availability, and the particular expertise of the project-leaders. The Wellington workshop was hosted by Russell McVeagh again and the Christchurch workshop was hosted by the University of Canterbury. Three additional ‘mini-workshops’ were held for cases which for various reasons could not be workshopped in August/September. MS: There were several ways in which mana wahine informed the workshops. These workshops were crucial for forming a sense of kōtahitanga or unity in purpose, even as we all worked on our own judgments separately in the ensuing months. The rōpū mana wahine also used break out time on occasion during the workshops, which gave participants an opportunity to be utterly honest and express satisfaction or dissatisfaction with the workshop processes as they experienced them. We invited participants to the workshops who were to be supportive observers, committed to a kaupapa mana wahine. Judge Caren Fox, Julia Whaipooti and Abby Suszko helped all of the participants to think through and see our processes and purposes more clearly.18 It was the participants in the rōpū mana wahine at the Christchurch workshop who decided to invite Emma Gattey and John Dawson to join, given their open-ness to such a process and the decision they were to be working with (Waipapakura v Hempton).19 In addition to using our own rōpū processes, tikanga Māori was also used at times during the workshops with all participants. We used karakia during both workshops, particularly as a way of managing transitions between stages of the workshop, for ­example for commencing, the session, or for eating. At the Christchurch workshop, we also used a process of mihimihi for the entire group, whereby all participants were asked to reveal something of their identity, and to answer a question: ‘what was your first feminist moment?’ This process led to the sharing of some excellent stories, and created a sense of direction and connection between participants that underpinned the whole day. As the workshops progressed it became clear to the participants of the rōpū mana wahine that the mana wahine contribution should in fact comprise a whole within a whole, and that participants would have a certain degree of freedom or rangatiratanga to make decisions for our own directions in the project. This led to an express wish among mana wahine contributors that the chapters of the book relevant to mana wahine would have an ­internal coherence, and they would be identifiable and clearly brought together 18  19 

Julia Whaipooti eventually joined the rōpū mana wahine as a writer. Waipapakura v Hempton (1914) 33 NZLR 1065.

12  Powell, McDonald, Stephens and Hunter under the one kaupapa. It was not expected that each piece in the book would adopt the same method of upholding mana wahine but collective purpose was an important safety mechanism. One of the early points of deliberation was about the extent to which we, as the mana wahine participants, would consent to using the tools of the general legal system contemporaneous to the time the original judgments were written. Rather than continue to uphold the legitimacy of a legal system that has done so much harm to Māori legal traditions, could we not simply burn the edifice down and start afresh with something else? We had that option before us; for example, to craft our judgments as story narratives calling only upon the tools of Māori law to revisit these decisions, eschewing the very notion of courts and judgments.20 In the end all participants chose to engage with the tools we had available to us by way of general judgment writing. This engagement, from these authors, reveals suprising and robust ways of incorporating and centralising the place of Māori women and the practices and modes of Māori law and values. Leonie Pihama identified one of the key problems facing Māori women in general, and the authors of the mana wahine strand:21 Māori women are constantly having to try and ‘find’ ourselves within the texts of the dominant group. We are forever trying to see ourselves in the images created by the colonisers.

In this project we sought to write those texts and create those images.

Reflections EM: Should a feminist stance have been refusing to put in place draconian time frames? The 19-month period from the call for contributions to manuscript submission (madness on reflection) was done with the aim of meeting the deadline for a research-assessment exercise—one that does not reward collaboration or locally based critique and engenders, in fact actively encourages, competitiveness between colleagues and institutions. All done for the purpose of gaining a bigger slice of government funding. A counting exercise that is therefore distinctly un-feminist. But we did put ourselves, and our contributors, under that pressure. No doubt this was a worthy, challenging, bonding, inspiring and precious experience. Did it need to be over and through so fast? As I write this, mid-March 2017 and a mere six weeks away from the publishing deadline, I am regretting taking on that pressure. It would have been idyllic to have met more often with our judges and commentators, to have been more immersed in the developing tikanga, to have been able to get coached through our hard moments by other project graduates during the process, rather than talking about it all after the end. It would have been so lovely to meet with the editorial team over regular leisurely lunches rather than only through increasingly frantic and frenetic emails. But we didn’t. We gave in to the politics of publishing. As feminists sadly sometimes have to do. So we did not get as many goodies as we could have—but there was still a lot of wonder. 20 

21 

See I Watson, ‘Kartinyeri v The Commonwealth’ in Douglas et al, Australian Feminist Judgments (n 1) 46. Pihama, ‘Tihei Mauriora Honouring our Voices’ (n 12) 236.

Ko Ngā Muka o Te Rino: Threads of the Two-Stranded Rope 13 I never thought we would get 57 lawyers to put their name in a feminist book. A number of extraordinary women judges gave up their time for us and were so incredibly humble and generous and kind. The tireless Rosemary also just gave and gave and gave. (Trish was right to say we could never do it without you.) Rhonda managed to fit in having a baby and maintain her cheerful equilibrium and enormous workload. Māmari has again started something that generations will remember her for. What a team. RP: Probably the most rewarding aspect of this project, apart from the intellectual stimulation, has been the experience of working collaboratively with such a fantastic group of people. What made the collaboration work? It involved a lot of give and take, we each put in extra effort at different times (as I write this Māmari is frantically recovering accidentally deleted files on behalf of the team). As an editorial team we had clear deadlines, and among the editorial team, a more-or-less clear pathway from start to finish. And most importantly, we communicated frequently and openly. My favourite moments were undoubtedly the workshops—the judgment writing workshop in Wellington in February 2016 (with baby George in utero), the Christchurch-based workshop in September 2016 (with two-weekold baby George in tow), and the Auckland-based mini-workshop in January 2017 (with four-month-old baby George in tow). The opportunity to sit down collectively and discuss the project, and the individual contributions, was invaluable both on an intellectual level and most importantly, for me, in terms of building relationships that I hope will continue to be fruitful. I also loved that the project was all about putting (feminist) theory into practice in a very constructive way. We were not just talking about feminism, we were doing it. And at the same time showing others (judges and lawyers) how they might do it too. I also love the way that the project sounds ‘radical’ but really it is quite constrained. A feminist judge writes a credible judgment, using traditional legal methods, which could actually have been handed down in real life, in Aotearoa at the time of the original decision. This is more difficult, more subtle, and potentially more powerful than a guns-blazing judgment that could only happen in the female-friendly world we dream of. Looking forward, I would love to explore the lessons from this project that can be used in teaching about how the law is developed by judges. Many of the cases that have been rewritten as part of this project form part of the undergraduate curriculum. The critique that is contained in the feminist judgments (sometimes implicitly and sometimes explicitly) could and should be incorporated into mainstream legal education. This project has been a ‘generalist’ project, in so far as it engages with law across the board. The potential impact is therefore equally broad. If we are to influence how judges undertake their tasks in the future, alive to the potential for implicit bias and to the importance of considering the race and gender context of their decisions, we need to start with our students. RH: Every project is different and this one was no exception. Elisabeth in particular is incredibly well-connected, and she worked hard to involve a wide range of participants, including academics from the most junior to the most senior, many more practitioners as judgment writers and commentators than in previous projects, and quite a few more men. Highlights for me included the enthusiastic involvement of a number of judges from different courts in the first workshop in Wellington; the warmth, energy and intense debate of the Christchurch workshop; the awesomeness of a retired judge rewriting one of his own judgments—and his openness to criticism and persuasion to make it more feminist; and of course learning about mana wahine and seeing that strand of the project develop and crystallise into a major contribution to legal scholarship. It was very interesting to be taught

14  Powell, McDonald, Stephens and Hunter judgment-writing by Margot Schwass and to observe that the way in which New Zealand judges are trained to write judgments, with the emphasis on clear issue-identification, minimal factual description and parsimony in reasoning, militated against many of the things we were trying to achieve as feminist judges. Feminist method begins with women’s experience rather than legal categories, so we often wanted to start with the story rather than the issues, to provide factual details marginalised or overlooked in other judgments, and to include all sorts of contextual information and obiter comments in order to make our feminist points. Would it be possible to produce a template for feminist judgments? And if all judges were to follow that template, would that change the nature of judging in general? What would be the epistemological effects? I take away these intriguing questions, together with new examples to enrich my future presentations on feminist judgments, and enduring admiration for the three amazing scholars and feminists with whom I’ve been privileged to work. MS: What I have so appreciated about this project is the opportunity to work with the mana wahine contributors, and to see how those contributors have sought to put Māori women at the centre of their thought processes and analysis. They have shown us it can be done, and it can be done in the context of the general legal system using Māori values. That’s powerful testament that diversity matters, and individuals can make a robust difference in law. Along the way I gained much understanding about workshopping processes (which was entirely new to me) and how tikanga Māori can have a strong role there, and that can be developed further. I’m sure that there is now a good base from which to leap to an indigenous judgments project, which will feed beautifully into the work already being done by international scholars such as Dr Val Napoleon, Hadley Friedland and others. I have learnt such a lot from editing other judgments and commentaries, forcing me to call on all my intellectual resources to make a useful contribution in the editing process. There is much value, I believe, in a generalist legal project, as this is, and we have all had to hone our generalist skills in the process of creating this book. I have also learned so very much from my colleagues, I am grateful to them for their expertise, their openness with what I could bring to this endeavour, and their welcome to me at all levels of the project … he mihi nui ki a rātou!

2 Law in Aotearoa New Zealand MĀMARI STEPHENS AND RHONDA POWELL

Māori Law Most New Zealanders, if one were to hazard a guess, would tend to regard this country as a unitary, monolegal state. Simply put, New Zealand is a nation ill-at-ease with the practices and theories of legal pluralism. It is difficult to see evidence that Māori concepts and practices of law operate to any significant degree within the legal system of Aotearoa New Zealand. It is only on closer examination that the veneer of monolegalism can be seen to lift away a little, and Māori ways of ‘doing and thinking law’ can be seen more clearly. Māori law and ways of doing law are not to be found in a nice collection of written laws and tidy theories. Understanding and identifying Māori law requires looking to what people actually do in everyday life that then reveals what people value and practise in the ordering and control of the behaviours of their community or society. Those lived practices of Māori communities, with all their variety and change over centuries, are intertwined with, and reveal, very particular values of relevance to law. The knowledge of these practised values is transmitted over time from person to person within, and between, Māori collectives, such as whānau, hapū and iwi. Such practised values have given rise, over time, to specific tikanga (rules). These tikanga can be seen to reflect what is valued within those Māori collectives. It is possible to identify some values that are linked with, and expressed by, Māori cultural practices that reveal legal thinking and practice, whereby a collation of enforceable rules and processes of decision-making is understood to control and direct human behaviour. These practices and values are discoverable through an exploration of textual and linguistic evidence, among other things, from the nineteenth and twentieth centuries. There is no definitive list of such values but the following comprise a good starting point: whakapapa, whanaungatanga, mana, utu, tapu, noa, manaakitanga, and kaitiakitanga.1 None of these values exists apart from the practices that sustain and reveal them. All of these values can be seen to operate within the mana wahine judgments in this collection, which readers can see summarised or storied in these introductory chapters.

1  Other commentators might identify slightly different lists of such values, see, eg, C Jones, ‘A Māori Constitutional Tradition’ (2014) 12 New Zealand Journal of Public International Law 187, 190.

16  Māmari Stephens and Rhonda Powell

Whakapapa Whakapapa, as a verb and a noun, means ‘to trace one’s ancestry back to a particular point of connection’.2 Whakapapa has been described as the pre-eminent organising principle of Māori society.3 Through whakapapa individuals gained a collective, tribal identity from which Māori derived, in the words of Andrew Sharp, their ‘physical and jural existence’.4

Whanaungatanga While whakapapa enables individuals and groups to order Māori life and distribute resources based on kinship connection, whanaungatanga calls for the creation and maintenance of relationships, utilising the ‘expected mode of behaviour’ based on those whakapapa connections.5 The traditional Māori value of whanaungatanga is broadly understood today to refer to the notion of collective obligation within kin groups whereby the collective is entitled to expect the support of its individuals and whereby also, individuals are entitled to the support of the collective.6

Mana This is a multi-layered concept, at the heart of which resides the central idea of authority.7 This focus is shown in Williams’ definition:8 Mana (i) 1. n. Authority, control. 2. Influence, prestige, power. 3. Psychic force. 4. a. Effectual, binding, authoritative. 5. Having influence or power. 6. Vested with effective authority. 7. v.i. Be effectual, take effect. 8. Be avenged.

Mana is relational, and in the case of kin-based collectives, an individual’s mana will be determined by her place within the kinship group, taking into account factors such as ancestry and birth order.9 As mentioned above in regards to whakapapa, an individual’s status within her own kin collective imports its own set of duties and obligations. Mana is also underpinned by precedence.

2  R Benton, A Frame and P Meredith (eds), Te Mātāpunenga: A Compendium of References To The Concepts and Institutions of Maori Customary Law (Wellington, Te Mātāhauariki Research Institute, Victoria University Press, 2013) 465. 3  See C Barlow, Tikanga Whakaaro: Key Concepts in Maori Culture (Auckland, Oxford University Press, 1990) 171–174. 4  A Sharp, ‘Traditional Authority and the Legitimation Crisis of “Urban Tribes”: The Waipareira Case’ (2003) 6 Ethnologies Comparées 6. 5  See Benton, Frame, and Meredith, Te Mātāpunenga (n 2) 524. 6  HM Mead, Tikanga Māori: Living by Māori Values (Wellington, Huia Publishers, 2003) 28. 7  See Benton, Frame, and Meredith, Te Mātāpunenga (n 2) 154. 8  H Williams, Dictionary of the Māori Language, 7th edn (Wellington, Government Printer, 1971) 172. 9 Mead, Tikanga Māori (n 6) 29–30.

Law in Aotearoa New Zealand 17

Utu Utu sets a standard whereby balance can be said to have been achieved between individuals and collectives.10 If a person or a collective has behaved in a manner that builds the mana of an individual or collective, say by way of hospitality or generosity, an obligation can be incurred by the receiving party to repay that mana-enhancing action to an appropriate degree. Conversely, if the actions of a group or individual have undermined or tarnished the mana of an individual or collective, a right can be created whereby the offended party can seek retribution or compensation. The seeking of balance or equilibrium can be regarded as the end goal of the employment of utu.11

Tapu and Noa Tapu and noa refer to states of ritual restriction and freedom from such restriction respectively. For something to be deemed tapu, there will be some special degree of restriction in how others must behave in relation to that person or thing (or place, or activity). Concomitantly, that which is noa is free from such restriction, and there are no prescribed limits on how others must behave in regards to that person, thing, activity or place.12

Manaakitanga This refers to the process of showing care for others, and generosity.13 Manaakitanga can also be shown towards relationships, underpinning the exercise of whanaungatanga, for example. The concept is not restricted to showing caring for people, although is most commonly used as such, but also refers to the care and honouring of precious objects, taonga, and possessions.

Kaitiakitanga Kaitiakitanga refers to the actions of one who guards or watches. In recent years and in modern usage this word has come to reflect an emerging ‘ethic of guardianship or trusteeship, especially over natural resources’ such as land and other food sources.14 Kaitiaki is often used to refer to a ‘trustee’, as one who looks after property or resources on behalf of others.15 These values cannot be separated out from practices, and thus the institutions of Māori life. Public decision-making and gatherings in which decision-making took place 10  See T Ahu, R Hoare, and M Stephens, ‘Utu: Finding a Balance for the Legal Maori Dictionary’ (2011) 42 Victoria University of Wellington Law Review 201, 204. 11  Sometimes referred to as a state of ‘ea’, see Mead, Tikanga Māori (n 6) 27. 12  See Williams, Dictionary of the Māori Language (n 8) 385 and 222. 13  Benton, Frame, and Meredith, Te Mātāpunenga (n 2) 205–09. 14  ibid 94. 15  ibid 94–103.

18  Māmari Stephens and Rhonda Powell have been observed as integral to Māori political and social life. Indeed, rūnanga as a means of collective decision-making and public assemblage in the mid-late nineteenth century, were important adaptations of traditional mechanisms.16 It can also be argued that such hui, or gatherings remain important, and an important means of rule-making and affirmation in Māori society.17 Two such gatherings are well known in New Zealand legal history; the Declaration of Independence (Declaration) in 1835 and the signing of the Te Tiriti o Waitangi/the Treaty of Waitangi (the Treaty)18 in 1840.

Te Tiriti o Waitangi The declaration was drafted by James Busby, the ‘British Resident at New Zealand’, signed by 34 northern rangatira, and, among other things, declared New Zealand to be an independent state under the authority of ‘The United Tribes of New Zealand’. It is likely that this assertion smoothed the path for the Treaty by creating the semblance of an entity with Treaty making authority at international law. It is important to look to Māori constitutional agency in understanding how Aotearoa New Zealand has developed as a nation. The rangatira who signed the declaration in 1835 and the 500 or so who eventually signed the Treaty five years later in 1840 undoubtedly understood that the documents they signed were intended to affect other Māori beyond any of their own immediate hapū. These early actions represent early developments in Māori civic collectivism, whereby Māori could act collectively and deliberately in such a way as to achieve broader purposes outside the context of kin connection.19 The Treaty is perhaps most commonly understood, in the context of the general legal framework in New Zealand, to have comprised an international agreement between polities. By virtue of this agreement, among other things, Māori collectives retained control over their own possessions, including lands, fisheries and taonga, and the Crown acquired a right to govern. More than that, the effect of the Treaty remains debated.20 The extent of the debate explains to some degree just how importance this agreement is to many Māori. Even though there were many other agreements between the Crown and Māori, the Treaty’s influence on modern conceptions of Māori identity, Māori law and the subsequent development of Crown-Māori relationships cannot be underestimated.21

16  V O’Malley, ‘Reinventing Tribal Mechanisms of Governance: The Emergence of Maori Rūnanga and Komiti in New Zealand Before 1900’ (2009) 56 Ethnohistory 69, 89. 17  A research project currently being piloted at the Law Faculty of Victoria University is examining the role of hui in Māori decisionmaking: He Pounga, the Practical Jurisprudence Project. 18  In this book contributors will vary in how they refer to the Treaty. Some will refer to it as ‘Te Tiriti’, others to ‘the Treaty’. Unless specified otherwise, either label is used to refer to both texts; rendered in English and Māori. 19  M Stephens, ‘A Loving Excavation: Uncovering the Constitutional Culture of the Maori Demos’ (2013) 25 New Zealand Universities Law Review 820. 20  Waitangi Tribunal, ‘He Whakaputanga me te Tiriti = The Declaration and the Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry’ (Wellington, Legislation Direct, 2014). The tribunal determined that the treaty was not a treaty of cession, that is, it was not an agreement whereby rangatira ceded authority to the Crown to make decisions for iwi and hapū. 21  See generally: C Jones, New Treaty, New Tradition: Reconciling New Zealand and Maori Law (Vancouver, University of British Columbia Press, 2016).

Law in Aotearoa New Zealand 19

The New Zealand Legal System Aotearoa New Zealand is a constitutional monarchy with a unitary state, an elected ­government, and an unwritten constitution.22 New Zealand’s independence from Britain has increased over time, starting with the New Zealand Constitution Act 1852 (Imp) which provided for self-government. The first general election was held in 1853 and Parliament first sat in Auckland in 1854. In 1857, the New Zealand Parliament acquired authority to amend nearly all domestic legislation.23 Then, in 1907, New Zealand’s constitutional status was changed from a colony to a dominion,24 leading to increased powers of self-government and some independence in international affairs. New Zealand has been a fully sovereign state, with capacity to enter into relations with other states and to make laws with extraterritorial effect since 1947.25 The Constitution Act 1986 (NZ) finally unilaterally revoked the ability of the UK Parliament to legislate.26 All but one27 of the judgments rewritten as part of this collection are from the last 30 years, in the period of full legislative independence. As well as Colonial governance, English law was imported to New Zealand as it stood on 14 January 1840.28 Pre-existing Māori customary rights were initially recognised by the courts but in 1877 the Supreme Court held that Māori were simply not a society capable of creating a recognisable law, also denying the legal relevance of the Treaty of Waitangi.29 This position persisted until 198630 and is now generally recognised as having been incorrect. Nevertheless, as case law has developed, so has the orthodoxy that the Treaty of Waitangi has only been recognisable within the domestic system to the extent that ­ ­Parliament has expressly incorporated it within legislation.31 Consistent with this recognition is its use as an extrinsic aid to statutory interpretation32 on the courts’ presumption that Parliament intends to behave in accordance with Treaty principles.33 The Treaty is also accorded status as a ‘foundational’ document. At least 36 pieces of legislation incorporate mentions of the Treaty, or Treaty principles, and such references establish the Treaty as a mandatory relevant consideration for a significant amount of state activity. Thus, the ­document has a very practical effect, despite its ambivalent status. Outside of the express terms of the Treaty, although also protected by those terms, tikanga Māori plays an increasing role in New Zealand­law, for instance as a relevant consideration in developing the

22  New Zealand has a number of constitutional statutes, including the Constitution Act 1986 (NZ), the Electoral Act 1993 (NZ), and the New Zealand Bill of Rights Act 1990 (NZ). There have been occasional attempts to explore how a written constitution could be developed: see, eg, Draft Articles 72, 73, 74 and Appendix, in G Palmer and A Butler A Constitution for Aotearoa New Zealand (Wellington, Victoria University Press, 2016) 25. 23  New Zealand Constitution Amendment Act 1857 (Imp). Apart from a few entrenched provisions of the New Zealand Constitution Act 1852 (Imp). 24  The change in status took effect on 26 September 1907: New Zealand Parliament, ‘New Zealand Sovereignty: 1857, 1907, 1947, or 1987? (28 August 2007)’ (Wellington, Parliamentary Research Paper, August 2007). 25  After passing the Statute of Westminster Adoption Act 1947 (NZ). 26  Repealing the NZCA 1852. 27  Waipapakura v Hempton (1914) 33 NZLR 1065 (SC). 28  English Laws Acts of 1854, 1858 and 1908 (NZ). 29  Wi Parata v The Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, 77 and 78. 30  Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680. 31  Hoani Te Heuheu Tukino v Aotea District Māori Land Board [1941] NZPC 1, [1941] UKPC 6. 32  Huakina Development Trust v Waikato Valley River Authority [1987] NZHC 130, [1987] 2 NZLR 188. 33  Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129.

20  Māmari Stephens and Rhonda Powell common law,34 when Māori words are included in statutes35 and when the context requires a judge to consider tikanga in exercising discretion.36 Certain English statutes still apply in New Zealand.37 English common law forms the basis of much New Zealand legal doctrine, particularly in areas with little legislative intervention, and New Zealand judges view relevant English precedent (and precedent from other Commonwealth jurisdictions, most notably Australia and Canada) as persuasive, but not binding. However, the law is increasingly developing in a uniquely New Zealand direction, particularly through the proliferation of statute. As one would expect, the majority of cases in this collection involve aspects of statutory interpretation.

New Zealand Courts and Tribunals New Zealand has a hierarchical court structure, with a comprehensive system of appeals, and applies the doctrine of precedent. For the most part, the legal system is adversarial rather than inquisitorial and espouses principles of equal access to justice (although barriers to access are recognised)38 and open justice. Subject to some limited exceptions, the public may access court hearings, litigants have the right to hearings in public and there are rights to publish and to access records of court proceedings. Although the structure has changed over time, New Zealand currently has four courts of general jurisdiction—the Supreme Court of New Zealand,39 the Court of Appeal,40 the High Court and the District Court—and a variety of specialist courts established by statute, the most relevant to this collection being the Māori Land Court,41 the Employment Court,42 and the Human Rights Review Tribunal.43 The (current) Supreme Court was established in 2003. Before this time, New Zealand’s final court of appeal was the Privy Council, sitting in London.44 The Supreme Court has appellate jurisdiction only. It hears appeals from the Court of Appeal and in exceptional

34 

Takamore v Clark [2012] NZSC 116, 2 NZLR 733 [94] and [164]. the Resource Management Act 1991 (NZ), s 6(e) records ‘waahi tapu and other taonga’ as ‘matters of national importance’ to be recognised and provided for by those exercising powers under the Act. RMA 1991, s 7(a) requires decision makers to have particular regard for kaitiakitanga. See Van Wagner J, West Coast ENT Inc v Buller Coal Limited, this collection, [195]–[204]. 36  eg, the Sentencing Act 2002 (NZ), s 8(i) requires a sentencing judge to ‘take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence’. See Toki J, R v Shashana Lee Te Tomo, this collection. 37  As listed in the Imperial Laws Application Act 1988 (NZ). 38  New Zealand Law Commission, Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (­Wellington, NZLC R85, 2004); New Zealand Law Commission, Justice: The Experiences of Maori Women (­Wellington, NZLC R53, 1999); New Zealand Law Commission, Women’s Access to Legal Services (Wellington, NZLC SP1, 1999) and other papers that formed part of the Women’s Access to Justice Project: www.lawcom.govt. nz/our-projects/women-and-access-justice. 39  Supreme Court Act 2003 (NZ). 40  Judicature Act 1907 (NZ). 41  Te Ture Whenua Maori (Maori Land Act) 1993 (NZ). 42  Employment Relations Act 2000 (NZ). 43  Human Rights Act 1993 (NZ). 44  The right of appeal was abolished by the Supreme Court Act 2003, s 42. Appeals from decisions made prior to 31 December 2003 can still be brought to the Privy Council: Senior Courts Act 2016 (NZ), sch 5. 35  eg,

Law in Aotearoa New Zealand 21 circumstances, from other courts.45 Appeal is subject to leave, which may only be granted if it is necessary in the interests of justice to do so.46 The Supreme Court is made up of the Chief Justice and four or five permanent judges47 and sits with a bench of five. In this collection, we have rewritten two Supreme Court cases, each with the feminist judge imagining herself to be an additional (sixth) judge. This would be unlikely to happen in practice— New ­Zealand appellate courts tend to sit with an odd number of judges because, should the bench be evenly split, the judgment upon appeal would be affirmed.48 The Court of Appeal is established by statute and has a President and between five and nine permanent judges.49 It normally sits in divisions of three judges,50 but may sit with a full court of five judges for cases of ‘sufficient significance’ and other defined ­circumstances.51 In eleven contributions to this collection, the feminist judge has imagined herself (or himself) to be an additional judge on the Court of Appeal, bringing the number up to four, five or six. Again, this is an area where we permitted some licence for the purpose of simulation. The High Court is a court of inherent jurisdiction and has jurisdiction to hear nearly all cases based on common law or statute. It also hears appeals from the District Court and tribunals. The High Court replaced the previously named Supreme Court in 1980.52 The earliest case in this collection, Waipapakura v Hempton53 is a decision of the (previous) Supreme Court (now the High Court). The High Court generally sits with one judge unless the matter is deemed to be of special significance or unless required by legislation.54 ­Feminist judges in this collection have taken the view that the issues they are addressing are of sufficient significance to warrant a full court of two or three judges, although in four cases the feminist judge has imagined herself to sit in place of the judge in the original decision. The District Court replaced the previous Magistrates Courts in 1980.55 Its jurisdiction is defined by statute and covers both criminal56 and civil matters.57 The District Court has three specialist divisions, the Family Court, the Youth Court and the Disputes ­Tribunal.58 District Court judges sit alone.59 This collection includes one first instance rewritten ­District Court decision and two first instance rewritten Family Court decisions. The Employment Court provides a forum for resolving employment disputes,60 although most of these disputes are resolved by mediation or the Employment Relations ­Authority.61 45 

SCA 2016, ss 68–71, 75. ibid, s 74. 47  ibid, s 66. 48  ibid, ss 53, 85. 49  ibid, s 45. 50  ibid, s 47. 51  ibid, s 50. 52  Judicature Amendment Act 1908 (NZ), s 3 (repealed). 53  Gattey J, Waipapakura v Hempton, this collection. 54  SCA 2016, s 9. 55  District Courts Act 1947 (NZ), s 3 (repealed). It was originally made up of separate courts but was reconstituted as a single court in 2017: District Courts Act 2016 (NZ), s 7. 56  DCA 2016, s 73. 57  ibid, s 74. 58  ibid, s 9. 59  ibid, s 20. 60  Employment Relations Act 2000 (NZ), s 186. 61  ibid, s 156. 46 

22  Māmari Stephens and Rhonda Powell The status of the Employment Court is similar to the District Court. Appeals can be brought from the specialist courts to the High Court or the Court of Appeal or sometimes to the Supreme Court, subject to leave as determined by statute.62 Catran and Coleman JJ’s feminist judgment in Air Nelson v C 63 is an application for leave to appeal to the Court of Appeal from the Employment Court on a question of law. The Human Rights Review Tribunal has a confined statutory jurisdiction,64 hears appeals from the Human Rights Commission, the Privacy Commissioner and the Health and Disability Commissioner, and sits with a panel of three.65 Like the Employment ­Relations Authority,66 it is required to focus on the substantial merits of the case, without regard for technicalities and exercises an inquisitorial function.67 The case of Director of Human Rights Proceedings v Goodrum,68 which is rewritten in this collection, was referred to the Human Rights Review Tribunal by the Human Rights Commission after investigation by the Human Rights Commission. The feminist judge imagines herself as the fourth member of the tribunal. Decisions of the tribunal may be appealed to the High Court or the Court of Appeal in defined circumstances.69 The Māori Land Court focuses on disputes involving Māori land, including the status of land and trust matters.70 It also has jurisdiction over disputes about certain other Māoriowned assets, such as fisheries.71 The Māori Land Court is distinctive due to its informal rules and inquisitorial approach. Proceedings may be conducted in te reo Māori. In this collection, the Court of Appeal case of Bruce v Edwards72 originated in the Māori Land Court. In the original decision of Waipapakura v Hempton,73 the Magistrate had incorrectly disclaimed jurisdiction to determine whether Waipapakura was fishing in accordance with native custom, a matter which he thought was reserved for the Native Land Court, the predecessor of the Māori Land Court. The Māori Land Court sits at a point of tension. Describing the operation of this inherited legal system, in particular the judicial branch, exposes the lack of indigenous input into how disputes should properly be resolved. The Māori Land Court provides an exception to some degree. Māori Land Court judges are specialised and have developed a high degree of expert knowledge about the peculiar challenges facing owners of Māori land, and consequently of customary law pertaining to land. The Māori Land Court also recognises Māori customary law in succession to land interests, and may recognise customary adoption (whāngai)74 even though such adoptions are not recognised in other areas of New Zealand law.75 Tikanga Māori is also recognised in regard to succession, by necessary implication. 62 

ibid, s 214. Catran and Coleman JJ, Air Nelson v C, this collection. HRA 1993, Pt 4. 65  ibid, s 98. 66  ERA 2000, s 157. 67  HRA 1993, s 105. 68  Director of Human Rights Proceedings v Goodrum [2002] NZHRRT 13. 69  HRA 1993, s 123–124. 70  TTWMA 1993. 71  Maori Fisheries Act 2004 (NZ). See also Maori Commercial Aquaculture Claims Settlement Act 2004 (NZ). 72  Johnston and Hori Te Pa JJ, Bruce v Edwards, this collection. 73  Waipapakura v Hempton (n 27). 74  TTWMA 1993, s 115. 75  See, eg, Adoption Act 1955 (NZ), s 19 which declares Māori customary adoptions as inoperative for the purposes of adoption law. 63  64 

Law in Aotearoa New Zealand 23 For example under s 109(1)(c) of Te Ture Whenua Maori (Maori Land Act) 1993 (NZ), entitlement in the case of intestacy is traced to the person nearest in the chain of title to the deceased, thus entitlement always follows the whakapapa and derivation of land interests, and this presumption reflects tikanga in regards to traditional notions of succession.76 In very recent years the significance of tikanga within particular cases, or within other courts, such as the highly valued Te Kooti Rangatahi, has provided aspirational models that the Pākehā system could (and should) seek to emulate. Te Kooti Rangatahi monitor some young people who have committed offences against the criminal law. They provide a useful example of how tikanga (and its values, as discussed above) can be utilised within the general court system:77 Because many of the young people who appear in Youth Court have lost touch with their sense of identity as Māori, emphasis is placed on the young person learning who they are and where they are from, and learning significant aspects of their Māori tribal history. This is approached by expecting each young person who appears in the Rangatahi Court to learn a pepeha (a traditional tribal saying) and a mihi (a greeting in the Māori language). Many of the young people who appear have never spoken te reo Māori prior to their appearance in the Rangatahi Court and their efforts can result in an intense personal journey of discovery. This emphasis on knowing “who you are, and, where you are from” draws on traditional Māori beliefs based on whakapapa (genealogy) and whakawhanaungatanga (making connections and relationships).

Warming up the court room as a safe rather than foreign place and rendering the judicial process accessible and comprehensible to participants are goals that are yet to be achieved. More such changes should be sought, in partnership with the tangata whenua. With this notion of partnership in mind we look at one final and important institution of the New Zealand legal system. One institution with little true enforceable power, but with enormous symbolic and socio-cultural significance is Te Rōpū Whakamana i te Tiriti o Waitangi, the Waitangi Tribunal (the Tribunal). The Tribunal was established as a permanent commission of inquiry under the Treaty of Waitangi Act 1975 (NZ). The Tribunal’s primary task, at that point, was to investigate contemporary claims by individual Māori that the Crown had acted or failed to act in such a way that the act or omission breached the Treaty and created prejudice to the claimant. From 1985 the Tribunal was empowered to investigate historical breaches dating back to 1840. The Tribunal has jurisdiction to investigate claims made by Māori who may have been prejudiced by acts or omissions by the Crown that are inconsistent with the principles of the Treaty.78 Such principles include partnership, and the Crown’s duty of active protection pursuant to art 2 of the Treaty, among others.79 76  In another example, TTWMA, s 345(2) rebuts the usual presumption at property law that multiple owners of land will have equal shares in that land, which enables tikanga Māori to be exercised in determining shares attributable to each owner. 77  For a general description and account of the effectiveness of these courts see H Taumaunu, ‘Rangatahi Courts of Aotearoa New Zealand—An Update’ (November 2014) Māori Law Review, maorilawreview.co.nz/2014/11/ rangatahi-courts-of-aotearoa-new-zealand-an-update/. 78  Treaty of Waitangi Act 1975 (NZ), s 6. 79  New Zealand Maori Council v Attorney-General [1987] NZCA 60, [1987] 1 NZLR 641. For a useful account of the principles identified over the past decades, see J Ludbrook, ‘The Principles of the Treaty of Waitangi: Their Nature, Their Limits and Their Future’, (Victoria University of Wellington Legal Research Paper Series No. 117/2015 16 December 2014) ssrn.com/abstract=2539314 or dx.doi.org/10.2139/ssrn.2539314.

24  Māmari Stephens and Rhonda Powell Only a Māori person may bring a claim, on behalf of herself or a group of Māori.80 For the most part the Tribunal’s powers are recommendatory only, and the Tribunal plays no part in the settlement of Treaty claims in respect of Treaty breaches, only in reporting upon such claims referred to it. In some cases, the receipt of the Tribunal report becomes the basis of settlement negotiations between the Crown and Māori claimant groups. In other cases, settlements of Treaty breaches have been directly negotiated between the Crown and claimants without the more public process of a Treaty inquiry and report. Consequently, the Tribunal, while still an active and highly important institution, is no longer central to the airing and settlement of many breaches of the Treaty. Ultimately grievances are not resolved by way of the procedures and processes of the Tribunal, but by way of processes and principles imposed by other Crown entities,81 and it is the Crown who primarily gets to both dictate and to write the story of the settlement process.82 However, despite the limitations of its powers and jurisdiction, and the excessive power of the Crown in determining outcomes, the Tribunal retains its position as ‘a venue for the expression of Māori passion and power’.83 For one thing, the Tribunal commences its inquiries from a different starting point to that of other ordinary courts: the principles of the Treaty, rather than statute or case law.84 For another, the Tribunal has created a set of procedures that reflect Māori custom, albeit to a limited degree,85 including holding hearings on marae. For such hearings to take place within, or close to, the landscape under inquiry can be powerful, confrontational, and culturally vital. As a commission of inquiry, the Tribunal is not bound by the laws of evidence to the same degree as other bodies, so has freedom to receive any material relevant to its inquiry.86 Proceedings are opened and closed with karakia, and te reo Māori is used frequently before, and by, the Tribunal. The Treaty and the Tribunal provide a constant, if contested, reminder of the fact that Aotearoa New Zealand calls upon two sets of legal traditions. This project takes seriously the notion of partnership that these institutions remind us of. As Justice Joseph Williams observed about the future of the Treaty and the New Zealand constitution:87 So the real question here is not what we should do with the Treaty of Waitangi, but—[…] ‘how do we perfect our partnership?’

80 

TOWA 1975, s 6(1). See Office of Treaty Settlements, Ka tika a muri, ka tika a mua: Healing the Past, Building a Future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown (Wellington, Office of Treaty Settlements, 2002). 82 Jones, New Treaty, New Tradition (n 21) 152. 83  A Sharp, ‘The Trajectory of the Waitangi Tribunal’ in J Hayward and N Wheen (eds), The Waitangi Tribunal – Te Roopu Whakamana i te Tiriti o Waitangi (Wellington, Bridget Williams Books, 2004) 195, 197. 84  TOWA 1975, s 6. 85  For critique of Waitangi Tribunal procedure, see R Boast, ‘The Waitangi Tribunal and Transitional Justice’ (2006) 4 Human Rights Research Journal 1 and R Boast, ‘Waitangi Tribunal Procedure’ in Hayward and Wheen, The Waitangi Tribunal (n 83) 53. 86  TOWA 1975, cl 6, sch 2. 87  J Williams, ‘The Status and Nature of the Treaty of Waitangi’ in C Morris, J Boston and P Butler (eds), Reconstituting the Constitution (Heidelberg, Springer, 2011) 185, 186. 81 

3 Introducing the Feminist and Mana Wahine Judgments ROSEMARY HUNTER, MĀMARI STEPHENS, ELISABETH McDONALD AND RHONDA POWELL

Our Place in a Global Movement RH: The premise of all the feminist judgments projects is both simple and compelling. Imagine a feminist judge sitting on the bench alongside the original judge/s in a particular case. How might she have decided the case and written her decision? In writing her judgment she is subject to all the same constraints as the original judges. She is writing at the same time, against the same background, knows only the same facts and must apply the same law. She must decide the issue/s put to the court by the parties, work with the material put to the court, observe her jurisdiction’s rules concerning the introduction of any extrinsic materials of her own, and abide by judicial norms of independence, fairness and impartiality. If, given all of these constraints, she can produce a legally plausible judgment which uses different reasoning and/or reaches a different result, that is both a powerful demonstration that the original decision was not inevitable, and a powerful illustration of the difference a feminist consciousness might make to judging. The feminist judgment projects have come about because of the absence—or at least the shortage—of real feminist judges. As a result, there are still too many instances of cases being decided which fail to deliver gender justice. The first such project, the Women’s Court of Canada (WCC), focused on a particular body of jurisprudence, the Canadian Supreme Court’s decisions under s 15—the equality clause—of the Canadian Charter of Rights and Freedoms.1 The Canadian Women’s Legal Education and Action Fund (LEAF), a group of feminist academics and lawyers, had been intervening in s 15 cases since the advent of the Charter to advocate a substantive interpretation of the concept of equality. After some initial success they felt that the Court had stopped listening to them and considered there was nothing further to be done with regard to gender equality. In strategising about how they could recapture the Court’s attention, they hit on the idea of not just making s­ ubmissions,

1  The Constitution Act, 1982, sch B to the Canada Act 1982 (UK), c 11, Pt 1 (Canadian Charter of Rights and Freedoms).

26  Hunter, Stephens, McDonald and Powell but showing the Court how it should be done.2 They set themselves up as the WCC to ‘review’ Supreme Court decisions which took an overly narrow approach to s 15 and to demonstrate what a substantive view of s 15 would look like in practice. The English project took a broader approach, not focused on a particular line of decisions but encompassing the whole of English law, and proceeding from the observation that while feminist theory had made a major impact on scholarship and teaching in the legal academy, it had had much less influence on legal decision-making. While the WCC’s slogan was ‘rewriting equality’, that of the English project was ‘from theory to practice’, that is, showing how feminist legal theory could be put into practice in judgment form. The project of rewriting judgments also represented a shift—or certainly an extension—of feminist law reform efforts. Whereas feminist law reform initiatives have traditionally involved lobbying for legislative reform, feminist judgments moved the focus to courts and the development of case law. This has several advantages. First, the feminist judge is in control of the product, not just of the ideas but also the language and expression, the reasoning as well as the result. Secondly, making decisions in individual cases allows for greater nuance and particularity than can be achieved with general legislation. It is micro-politics compared to the grand theory of statutory reform. Thirdly, one of the persistent obstacles to the success of feminist law reforms has been the fact that once enacted, legislation must be implemented by judges and officials who are often uninformed about or actively unsympathetic to its objectives. A feminist judge is in a position to implement feminist-inspired law reform in the way it was intended to operate.3 Some of the things we discovered in doing the English project remain true of all the projects. First, the reasoning is at least as important as the result. While many feminist judgments are dissenting judgments, or reach a different conclusion from the original judge, this is not always the case. In some instances, the feminist judge reaches the same result but for different reasons. It is those different reasons that are important, that introduce new understandings, interpretations and analyses and add to law’s knowledge of the world and of women’s lives. Secondly, the facts are at least as important as the law. ‘Facts’ are not given but constructed, and very often the feminist judge begins by telling the story differently from the way it has been told by the other judges—emphasising different aspects of the narrative, paying greater attention to voices and experiences which have been traditionally silenced or side-lined, acknowledging the harm and trauma suffered by protagonists, or, indeed, restoring dignity and privacy to a party by not retelling their traumatic experience in exhaustive detail. Sometimes the different story provides the basis for a different analysis and application of the law. Sometimes it is simply important in itself that a different account is given.4 Each of the feminist judgment projects has made its own distinctive contribution to the genre. Following the Canadian and English projects, the Australian project branched out in several directions, incorporating new areas of law (constitutional, tax, immigration, 2 

D Majury, ‘Introducing the Women’s Court of Canada’ (2006) 18 Canadian Journal of Women and the Law 1. eg, R Hunter, Domestic Violence Law Reform and Women’s Experience in Court: The Implementation of Feminist Reforms in Civil Proceedings (New York, Cambria Press, 2008); R Hunter, ‘More Than Just a Different Face? Judicial Diversity and Decision-making’ (2015) 68 Current Legal Problems 119, 139; R Hunter and D Tyson, ‘Justice Betty King: A Study of Feminist Judging in Action’ (2017) 40 University of New South Wales Law Journal 778. 4  See R Hunter, C McGlynn and E Rackley (eds), Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing, 2010). 3  See,

Introducing the Feminist and Mana Wahine Judgments 27 e­ nvironmental, torts, consumer protection), including first instance and sentencing decisions in addition to appellate cases, and introducing the distinctive voices of Indigenous women. The three Indigenous women who contributed to the Australian collection engaged with the project in three quite different ways. Heron Loban wrote a relatively conventional judgment in which her primary objective was to give speaking roles and credibility to the Indigenous women complainants, when the original judgment had relied on the evidence of a male anthropologist rather than that of the women themselves.5 Irene Watson wrote an essay explaining why it was necessary for her to speak from a position of Indigenous sovereignty, and thus impossible to take on the persona of a judge in the Australian legal system whose very existence denied that sovereignty.6 Nicole Watson rewrote a 1930s judgment not as at the same time, but from the perspective of an imagined future in which a treaty has been concluded between the Republic of Australia and Aboriginal and Torres Strait Islander nations. Pursuant to the treaty, a First Nations Court of Australia has been established to contribute to the decolonisation process by revisiting past decisions which had a significant impact on the ability of Aboriginal and Torres Strait Islander people to exercise their right to legal equality.7 The Northern/Irish feminist judgments project took as its theme ‘judges’ troubles and the gendered politics of identity’.8 It also conceived of itself as a post-colonial project, interrogating the ways in which judicial decision-making has contributed to the construction of Irish national identity, and in particular the limited and subservient role attributed to women as mothers and bearers of children within that identity. In a country whose Constitution protects the right to life of the unborn and ‘recognises’ and protects the life of women within the home, there is much feminist work to be done. The US feminist judgments project returned to appellate decision-making and specifically focused on the US Supreme Court. Rather than inviting participants to choose their own cases to rewrite, the US project consulted widely on a list of Supreme Court cases calling for feminist revision.9 The feminist international judgments project is engaged in rewriting decisions of a number of international courts and tribunals, with each judgment being reworked by a ‘chamber’ of judges, mirroring the working practices of the relevant body. At the time of writing an Indian feminist judgments project is underway, and a Scottish feminist judgments project is just beginning. The organisers of the US project are also planning a book series focusing on specific areas of law, with the first book, feminist judgments on tax law, in the process of being commissioned. All of this activity demonstrates not only the appeal of the methodology, but also the fact that there is no shortage of judgments which would benefit from feminist rewriting. As Carol Smart has observed, law is a gendering technology which has systematically disqualified feminist knowledge.10 Bringing feminist knowledge into law in order to correct biases, render it more inclusive, and en-gender justice is a substantial task. 5  Loban J, Australian Competition and Consumer Commission v Ramon Lal Keshow, in H Douglas et al (eds), Australian Feminist Judgments: Righting and Rewriting Law (Oxford, Hart Publishing, 2014) 180. 6  I Watson, ‘First Nations Stories, Grandmother’s Law: Too Many Stories to Tell’, in Douglas et al, Australian Feminist Judgments (n 5) 46. 7  Watson J, In the Matter of Djaparri (Re Tuckiar), in Douglas et al, Australian Feminist Judgments (n 5) 442. 8  M Enright, J McCandless and A O’Donoghue (eds), Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (Oxford, Hart Publishing, 2017). 9  K Stanchi, L Berger and B Crawford (eds), Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge, Cambridge University Press, 2016). 10  C Smart, Feminism and the Power of Law (New York, Routledge, 1989).

28  Hunter, Stephens, McDonald and Powell

The Need for Feminist Judges EM: Just such a substantial task awaits our group of islands in the southern hemisphere. Aotearoa, as explored in Chapter 2, has a borrowed, but at the same time unique, legal system. Our uniqueness does not, however, render the need for a critical project such as this any less pressing. The critically important challenge for any local feminist judgments project was how to give voice to Māori women in a manner consistent with Te Tiriti o Waitangi (the Treaty of Waitangi). The concept of being partners in this work gave life to the image of Te Rino, a two-stranded rope. With this image was a steady reminder of the obligation of the Pākehā participants, and in particular the three non-Māori convenors, to be mindful of the impact of white, colonial, patriarchal laws on an indigenous population. Could our processes during this project and the eventual writings be a model for intersectionality in practice? Or would we be unable to avoid repeating historical patterns of disinterest and disengagement? New Zealand is sometimes held out as a leader in gender equality. We boast a long tradition of ‘firsts’ in female participation in government and the professions.11 The legal profession is no different, with the first female law graduate, Ethel Benjamin, being admitted to the bar in May 1897 and the first female judge, Dame Augusta Wallace, being appointed in September 1975, ahead of or at pace with other common-law jurisdictions. New Zealand recently had, all in office at the same time, a female Chief Justice (Dame Sian Elias), as well as female leadership in the Court of Appeal (President Ellen France), High Court (Chief Judge Helen Winkelmann) and the District Court (Chief Judge Jan-Marie Doogue). Following Justice Helen Winkelmann’s appointment to the Court of Appeal, on 5 August 2015, for the first time in 153 years, an all women bench of the permanent Court of Appeal sat in Wellington (President Ellen France, with Justices Helen Winkelmann and Christine French). The President of the New Zealand Law Society, Chris Moore called the historic event ‘another step in the long road to equality’, while also noting that ‘the current statistics relating to the advancement of women in the profession are not something of which we should be proud’.12 It must be noted however that none of the women mentioned in this paragraph of achievements are Māori. The 2016 Snapshot of the Profession produced by the New Zealand Law Society records that while 61% of people admitted to the legal profession and 60% of law firm employees are women, only 24% of law firm partners, 17% of Queen’s Counsel13 and 29% of the judiciary are women.14 This suggests that there are barriers preventing female progression to senior roles within the legal profession, including the judiciary. And while Māori

11 

N King, Raising the Bar: Women in Law and Business (Wellington, Thomson Reuters, 2014) 3. Zealand Law Society, ‘Law Society Applauds All-Woman Court of Appeal Bench’ (New ­Zealand Law Society, 7 August 2015) www.lawsociety.org.nz/news-and-communications/news/law-society-applauds-all-womancourt-of-appeal-bench. 13  G Adlam and A Jacombs, ‘Snapshot of the Profession 2016’ 883 LawTalk (11 March 2016). 14  G Adlam, ‘New Zealand’s Judiciary and Gender’ (New Zealand Law Society, 11 November 2015) www. lawsociety.org.nz/practice-resources/research-and-insight/practice-trends-and-statistics/new-zealands-judiciaryand-gender. 12  New

Introducing the Feminist and Mana Wahine Judgments 29 c­ urrently make up 15% of the population of Aotearoa,15 only 6.1% of the legal profession are Māori.16 Māori women are even more poorly represented in the legal profession—at a mere 1.6%.17 Encouragingly, more Māori are entering law school; 9% of law graduates in 2014 were Māori.18 But with only just over half of those expected to be admitted to the Bar, significant barriers to participation in the law profession clearly remain, and parity of representation and influence will require considerable time and commitment. There is also uncertainty about whether increasing the number of female judges makes any difference to the practice and substance of judicial decision making—in particular, whether women judges make a difference to women’s experience of the law.19 Not all women are feminists and arguably a male judge could equally approach their task in a manner which is alive to potential gender issues, in the way they portray the story behind the case, the way they resolve a case and their awareness of the gendered impact of their decisions. We agree with the words of Reg Graycar, still disturbingly relevant nearly 20 years after she wrote them:20 I certainly believe it is essential we have more women judges, indeed that we have a more representative judiciary in all the respects that divide members of our community (e.g. racialisation, sexuality, physical ability, class). But in order for our perceptions of these core values of representativeness and impartiality to move with the personnel, rather than remain fixed in the framework of a time when only a small part of the community was represented on courts, and legal doctrines and rules were framed from that partial perspective, we need to pay careful attention to judicial method and in particular to concepts such as judicial notice and “common sense”. In doing so, we need to focus just as much on the facts as we do on the law … [we need] to question and reformulate the rules of the game, rather than focus all our attention on the people being “let in” to play.

To date, feminist engagement in Aotearoa aimed at ‘reformulating the rules of the game’ has had mixed success. A number of the women lawyers associations have been influential—for example, acting as amicus in the benefit fraud case of Ruka v Department of Social Welfare,21 assisting the Court to understand the impact of family violence on a relationship (­Auckland Women Lawyers) and making a submission which convinced the ­Justice and Electoral Select Committee to introduce a total bar on offering evidence of a rape complainant’s reputation in sexual matters (Wellington Women Lawyers ­Association).22 However, most of the Law Commission’s proposals from the project on Women’s Access to Legal Services23 and Te Tikanga o te Ture: Te Mātauranga o ngā Wāhine

15 Statistics New Zealand: Tatauranga Aotearoa, ‘Māori Population Estimates: At 30 June 2016—Tables’ (­ Wellington, Department of Statistics) www.stats.govt.nz/browse_for_stats/population/estimates_and_projections/MaoriPopulationEstimates_HOTPAtJun16.aspx. 16  Adlam and Jacombs, ‘Snapshot’ (n 13) 27. 17 ibid. 18  ibid 20. 19  See, eg, U Schultz and G Shaw (eds), Gender and Judging (Oxford, Hart Publishing, 2013); E Chan, ‘Women Trailblazers in the Law: The New Zealand Women Judges Oral History Project’ (2014) 45 Victoria University of Wellington Law Review 407; J Glover, ‘Women on the Bench’ (2010) 134 NZLawyer Online (19 April) www. nzlawyermagazine.co.nz. 20  R Graycar, ‘The Gender of Judgments: Some Reflections on “Bias”’ (1998) 32 University of British Columbia Law Review 1, 20–21. 21  Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA). 22  E McDonald, ‘Complainant’s Reputation in Sexual Matters’ [2007] New Zealand Law Journal 251. 23  New Zealand Law Commission, Women’s Access to Legal Services (Wellington, NZLC SP1, 1999).

30  Hunter, Stephens, McDonald and Powell Māori e pa ana ki tēnei24 or those from the Law Commission’s work on Some Criminal Defences with Particular Reference to Battered Defendants,25 all projects undertaken in response to calls from the public, have not been implemented. The Law Commission has recently had to repeat their recommendations concerning the necessary reform of self-defence in ­Understanding Family Violence: Reforming the Criminal Law Relating to ­Homicide,26 which have yet to be met with any substantive government response. One of the re-imagined judgments in this volume is the Court of Appeal decision in R v Wang,27 a case which was the focus of both those Law Commission reports. The Court of Appeal upheld the trial judge’s decision that self-defence should not have been put to the jury. The judge said in his ruling that to allow the jury to consider the defence in such a situation would be tantamount to ‘a return to the law of the jungle’.28 A number of feminist lawyers criticised the decision, on the basis that the Court showed no understanding of the position of victims of domestic abuse.29 As one of those who entered this public debate,30 I received a letter from the trial judge, (then) Eichelbaum J, who wrote he had re-looked at the court file and that it was not a case about a battered woman, rather about a defendant with a depressive illness (attaching a copy of some pages of the trial transcript, highlighted, to support his view). It is certainly true that Wang has long been taught, and discussed, as a case of an immigrant woman who was subjected to abuse by her husband, and killed him while he was intoxicated following threats to her and her family he promised to act on. As part of the project, I suggested to those re-imagining the decision and writing the commentary, that it would be a valuable exercise to request access to the court file to see the notes of evidence first hand. As the first of two powerful reminders of the importance of projects such as this, the notes of evidence disclosed much more violence than was reflected in the Court of Appeal’s judgment—they referred to the dynamic in the house as reflecting a ‘loveless, coercive marriage’,31 but not the extent of the physical and psychological abuse meted out by the deceased over many years. Nor did the decision disclose that the deceased was scheduled to fly to Hong Kong, which is where the family members he threatened to blackmail and kill resided. The notes of evidence also showed that on occasion Wang Xiao Jing (Mrs Wang) did indeed tell others about her experiences of abuse and feelings of helplessness, and friends testified they had told her to endure it. Others witnessed Mr Wang make threats and imply to Mrs Wang that he could easily kill and dispose of a body in New Zealand. All of this information goes directly to the issue of whether she believed that her husband would 24 New Zealand Law Commission, Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te ­Mätauranga o ngä Wähine Mäori e pa ana ki tënei (Wellington, NZLC R53, 1999). 25  New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants (Wellington, NZLC R73, 2001). 26  New Zealand Law Commission, Understanding Family Violence: Reforming the Criminal Law Relating to Homicide (Wellington, NZLC R139, 2016). 27  R v Wang [1990] 2 NZLR 529. 28  ibid 535. 29 N Seuffert, ‘Battered Women and Self-Defence’ (1997) 17 New Zealand Universities Law Review 292; F Wright, ‘The Circumstances as She Believed Them to Be: A Reappraisal of Section 48 of the Crimes Act 1961’ (1998) 6 Waikato Law Review: Taumauri 109; S Beri, ‘Justice for Women Who Kill: A New Way?’ (1997) 8 Australian Feminist Law Journal 113. 30  E McDonald, ‘Women Offenders and Compulsion’ [1997] New Zealand Law Journal 402; E McDonald, ‘­Battered Woman Syndrome’ [1997] New Zealand Law Journal 436. 31  Wang (n 27) 540.

Introducing the Feminist and Mana Wahine Judgments 31 carry out the threats to kill and what options she had to avoid those threats—yet this information remained, until now, hidden from public view and therefore could not add weight to the many calls for reform. The second reminder came with Director of Human Rights Proceedings v Goodrum.32 When researching for this re-imagined decision, Selene Mize, who had been motivated to join the project on the basis of the reasoning given in the reported decision, discovered that there had in fact been a dissenting minority member of the Tribunal, Leah Whiu, a Māori woman lawyer and academic with affiliations to Ngāpuhi and Ngāti Hine. We can find no reason why her dissent was not published, nor even referred to by the majority of the Tribunal. Even if it was the practice of the legal publisher at the time to only produce the majority’s finding, that does not explain the lack of reference to her views in the published decision. Selene Mize’s decision now stands, published, with Leah Whiu’s reasons given visibility and support. To us, it was a deeply troubling example of the silencing and invisibility of Māori (and minorities in both senses of the word) within the legal system, even if done unintentionally and without malice.

Feminist Judging in Action What makes a judgment feminist? The growing number of feminist judgment projects provide an increasing number of answers to this question,33 supplemented by theoretical literature on feminist legal methods34 and empirical studies of feminist judges.35 The following section discusses some of the common themes evident in the feminist approaches adopted by the judgment writers in this collection (with more detail on each judgment to be found in the accompanying commentary). These themes include applying various aspects of feminist theory; recognising women’s experiences and perspectives; and challenging gender bias.

Feminist Theoretical Approaches RH: While feminist judges all draw on feminist theory at some level, this will rarely be explicit within their judgments or necessarily obvious to the general reader. The judgments

32  Director of Human Rights Proceedings v Goodrum and City and Country Real Estate Limited [2002] NZHRRT 13, 7 NZELC 96, 934. 33  See, eg, R Hunter, ‘An Account of Feminist Judging’, in Hunter et al, Feminist ­Judgments (n 4) 30; H Douglas et al, ‘Reflections on Rewriting the Law’ in H Douglas et al, Australian Feminist ­Judgments (n 5)19. 34  See, eg, KT Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829; C Boyle, ‘Sexual Assault and the Feminist Judge’ (1985) 1 Canadian Journal of Women and the Law 93; PA Cain, ‘Good and Bad Bias: A Comment on Feminist Theory and Judging’ (1988) 61 Southern California Law Review 1945; R Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15 International Journal of the Legal Profession 7; SE Rush, ‘Feminist Judging: An Introductory Essay’ (1993) 2 Southern California Review of Law and Women’s Studies 609. 35  R Hunter, ‘Justice Marcia Neave: Case Study of a Feminist Judge’ in U Schultz and G Shaw, Gender and Judging (n 19) 399; Hunter and Tyson, ‘Justice Betty King’ (n 3); E Sheehy (ed), Adding Feminism to Law: The Contributions of Justice Claire L’Heureux-Dubé (Toronto, Irwin Law, 2004); S Sherry, ‘Civic Virtue and the Feminine Voice in Constitutional Adjudication’ (1986) 72 Virginia Law Review 543.

32  Hunter, Stephens, McDonald and Powell are conventional in the sense of being based on legal authorities and applying law to facts. Feminist theory is not a source of legal authority, and so while feminism informs the approach, it does so implicitly. This is a constraint with which some of the feminist judges disagreed. Joanna Manning, for example, maintained that her conception of a feminist judge included referring to feminist sources within her judgment, and she insisted on citing Carol Gilligan36 in her rewriting of Seales v Attorney-General.37 Mark Bennett’s judgment in Lankow v Rose also contains direct references to feminist literature, alongside other social science literature, to establish gendered patterns in paid and domestic work which form the essential background to his legal analysis. More usually in this collection, however, the identification of the particular feminist theoretical approach taken by the judgment-writer will be found in the commentary rather than in the feminist judgment itself. The feminist judgment projects, both individually and as a whole, clearly demonstrate that feminism is not monolithic. There are multiple strands within feminist legal theory and the judgments do not take a uniform position. To put this another way, it is not possible to ‘read off ’ either the reasoning or the result in many cases from the mere fact that it is a feminist judgment. Each judge made their own decisions about which feminist approach/ es they wished to take to their chosen case. These approaches were discussed and sometimes debated, challenged and revised in the workshops on the draft judgments. Others might have disagreed with the approach or preferred to adopt a different feminist theoretical frame. Ultimately, however, it was a matter for the judge themselves to decide on their own theoretical stance. A strong, anti-subordination theme runs through many of the judgments, that is, a concern that legal rules should not perpetuate structures of male power and female subordination. Such rules do nothing to challenge men’s exploitation and abuse of power— particularly manifested in the multiple forms of violence against women—and leave women unsafe and unprotected by law. By contrast, the feminist judges are concerned to interpret the law in ways that are attentive to its implication with male power and that are designed to end women’s subordination. This theme can be found, for example, in the feminist judgments in R v S,38 R v Sturm,39 Vuletich v R40 (criminal and evidence law relating to sexual violence), Police v Kawiti,41 R v Wang42 (criminal law defences), R v Taueki43 (sentencing guidelines for cases involving serious violence), Air Nelson v C,44 Brooker v Police45 (harassment) and Ruka v Department of Social Welfare46 (the treatment of de facto relationships in social welfare law). A number of the judgments engage with feminist critiques of the public/private distinction within liberalism, and in particular the ways in which women’s work in the private 36  C Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, Mass., Harvard University Press, 1982). 37  Manning J, Seales v Attorney General, this collection [228]. 38  Benton-Greig J, R v S, this collection. 39  Croskery-Hewitt J, R v Sturm, this collection. 40  Cross J, Vuletich v R, this collection. 41  Quilmie J, Police v Kawiti, this collection. 42  Midson J, R v Wang, this collection. 43  Gourlay J, R v Taueki, this collection. 44  Catran and Coleman JJ, Air Nelson Ltd v C, this collection. 45  McLean J, Brooker v Police, this collection. 46  Stephens J, Ruka v Department of Social Welfare, this collection.

Introducing the Feminist and Mana Wahine Judgments 33 sphere of the home, nurturing their children and families, is socially and legally devalued compared to the work men do in the public world of commercial and political activity. This is evident in the family law cases of V v V,47 Caldwell v Caldwell48 and Lankow v Rose.49 In the latter case, the feminist judgment also shows how Ms Rose’s contributions to the success of Mr Lankow’s business were subsumed into her ‘private’ role and thereby rendered ­invisible, resulting in the court deciding that her equitable claim could apply only to the couple’s domestic assets and not also to the business assets. The same devaluation of the private and the feminist judgment’s concern to accord more appropriate legal recognition and value to the home, privacy and care are found in the cases of Stephens v Barron,50 Brooker v Police51 and Lawson v Housing New Zealand.52 In Stephens v Barron, Victoria Stace does not accept that company law should insulate commercial actors from accountability and liability when their negligence has caused serious damage to the plaintiffs’ home and family. In Lawson v Housing New Zealand, the neoliberal privatisation of public housing resulted in Housing New Zealand introducing commercial rents which were unaffordable to Mrs and Mr Lawson. The consequence would be their eviction from the home they had occupied for almost 50 years. While the High Court considered that the commercial and discretionary character of the policy to increase rents rendered it not amenable to judicial review, Natalie Baird works harder to avoid this obvious injustice to the Lawsons. In Brooker v Police, Janet McLean likewise works to ensure that the invasion of a woman police officer’s privacy is not trivialised compared to the male defendant’s freedom of expression. Brooker v Police also provides a good example of the feminist critique of rights. Guarantees of civil and political rights within liberalism frequently give rise to conflicts of rights between individuals, and in these circumstances, the liberal response is to weigh up the respective rights to determine which should prevail. Feminists have observed, however, that in this balancing process, there is a persistent tendency for women to lose out as their interests are often considered less important (consistent with the forms of devaluation just ­discussed).53 In Brooker v Police, the issue was presented as a clash between the complainant’s right to privacy and the defendant’s right to freedom of expression, and the latter predictably was valorised. Janet McLean’s careful analysis of the facts shows, however, that the right to freedom of expression was not engaged. On examination, the defendant’s actions could not be characterised as a public protest, but rather constituted an act of private intimidation which ought not to have attracted legal protection. Similarly, in Hallagan v Medical Council of New Zealand,54 the applicants’ rights to freedom of conscience and religion were pitted against women’s rights to reproductive autonomy. Abortion is notoriously a context in which women’s rights have been subordinated and seriously curtailed. Rhonda Powell finds a solution which respects the applicants’ rights while preserving to the fullest extent possible women’s rights to choose to have an abortion.

47 

Judge Adams, V v V, this collection. Judge Ballantyne, AMO’H v AJO’H (‘Caldwell v Caldwell’), this collection. 49  Bennett J, Lankow v Rose, this collection. 50  Stace J, Stephens v Barron, this collection. 51 McLean, Brooker (n 44). 52  Baird J, Lawson v Housing New Zealand, this collection. 53  See U Cheer, ‘Rights Balancing Rejected’, this collection. 54  Powell J, Hallagan v Medical Council of New Zealand, this collection. 48 

34  Hunter, Stephens, McDonald and Powell Further aspects of the feminist critique of rights concern the fact that the rights articulated in domestic and international human rights instruments tend to be rights that are ­important to men, while rights important to women (such as freedom from private violence) are not recognised, and the difficulties women experience in being able to exercise their rights equally with men. Hallagan v Medical Council of New Zealand provides an example of the former issue, where the substantive right to abortion on demand is nowhere provided for in domestic or international law. Lawson v Housing New Zealand is another example, where the lack of an express right to housing in New Zealand law left Mrs Lawson with limited legal protection. Examples of the second issue are found in Taylor v ­Attorney-General,55 where a blanket ban on prisoners voting had an adverse impact on women prisoners, and Caldwell v Caldwell,56 where family law rules concerning relocation have a systematically adverse impact on women who are typically the primary carers of children and therefore typically the ones who have their autonomy and freedom of movement curtailed in the interests of maintaining contact between children and non-resident fathers. Another prominent theme is the employment of a feminist ethic of care, informing both the approach taken by the feminist judge towards the parties in the case, and the judge’s view of how other legal actors should exercise their discretion, and the standards of behaviour the law should require. Victoria Stace in Stephens v Barron evinces a strong ethic of care towards Mrs Barron and her family, whose lives were seriously affected by the Stephens’ negligence, and her decision also suggests that company law would benefit from an infusion of the ethic of care more fully realised within tort law.57 In the two environmental law cases, Squid Fishery Management Company v Ministry of Fisheries58 and West Coast ENT Inc v Buller Coal Limited,59 Nicola Wheen and Estair Van Wagner both advocate the incorporation of an ethic of care for the environment, for non-human species and for future generations within environmental decision-making. This ethic of care is central to both Wheen J’s ecofeminist approach and Van Wagner J’s relational materialist feminism,60 which emphasises the need for sustainable relationships between humans and the natural world considered not in a generalised or abstract way but in terms of the specificity of places, things, beings and processes. In Seales v Attorney-General, as noted above, Joanna Manning cites Carol Gilligan’s work showing that women have a greater tendency to adopt an ethic of care and to see themselves in relational terms.61 In her view, this renders women vulnerable in situations where they are incapacitated and dependent, as they are more likely to wish to avoid being a ‘burden’ on others. For this reason, she considers a legal option of assisted suicide would pose particular dangers for women. Her conclusion, then, is that in order to care for women, they need to be protected from their own desires to care about the interests of others, hence assisting suicide should continue to be criminalised. This result shows how an ethic of care can be

55 

Yarwood and Pirini JJ, Taylor v Attorney-General, this collection. (n 48). (n 50). 58  Wheen J, Squid Fishery Management Company Ltd v Minister of Fisheries, this collection. 59  Van Wagner J, West Coast ENT Inc v Buller Coal Ltd, this collection. 60  See C Iorns, ‘Broadening an Ethic of Care to Recognise Responsibility for Climate’, this collection. 61 Manning, Seales (n 37). 56 Ballantyne, Caldwell 57 Stace, Stephens

Introducing the Feminist and Mana Wahine Judgments 35 paternalistic.62 Although Manning calls into question whether choosing assisted suicide in these circumstances is an exercise of autonomy,63 other feminists might disagree. By contrast, in Re Williams [PPPR],64 Holly Hedley rejects legal and medical paternalism and seeks to maximise the autonomy of a mentally ill pregnant woman, while also recognising her vulnerability and need for support. Judge Hedley’s application of an ethic of care seeks to promote both rights and best interests within a relational context which includes querying why no-one has thought to ascertain the availability of trusted family members or friends who might assist Ms Williams in making decisions about the impending birth of her child.

Recognising women’s stories and experiences RP: The way in which a judge tells the story that led to a court case has the effect of solidifying the particular narrative adopted by the judge. If the judge ignores certain details deemed to be legally irrelevant, those details are lost from the story. The way in which a judge constructs and interprets the facts of a case becomes a legal ‘truth’. One of the ways in which a judge can be ‘feminist’ is by listening to women’s stories, hearing the perspectives of woman litigants and recognising women’s experiences in the way that they recount the facts of cases, so that these experiences also become legal truths.65 This technique could be seen to relate to the process of judgment-writing rather than the outcome of the case.66 However, the way in which the facts are framed may also influence the reasoning and thereby the outcome. The way in which a judge tells the story of the case also plays a potentially therapeutic role for the parties, even if the outcome is disappointing. Sensitive use of language has the potential to enhance the mana of people involved in the proceedings, which is especially important for those who have been treated inhumanely already. Also, given that a well-written judgment would speak to a range of audiences, including the parties themselves,67 in the event that they are unsuccessful, recounting the perspectives of the litigants may make the pill easier to swallow. Like previous collections of feminist judgments, many of the feminist judges in this collection saw the importance of recognising women’s stories and experiences and employed story-telling in their judgment-writing. In Brooker v Police, McLean J’s blow by blow account of Ms Croft’s experience of threatening and intimidating behaviour is particularly effective in grounding the case in the lived experience of Ms Croft. He went to her house. He knocked on her door. She told him to leave. Rather than downplaying this behaviour by treating it as part of a day in the life of a police constable, McLean J reminds us that Mr Brooker directed this abuse against Ms Croft in the privacy of her own home, 62  See R Hunter, K Mack and S Roach Anleu, ‘Judging in Lower Courts: Conventional, Procedural, Therapeutic and Feminist Approaches’ (2016) 12 International Journal of Law in Context 337; cf J Herring, ‘Commentary on Sheffield City Council v E’ in Hunter et al, Feminist Judgments (n 4) 346, 349–50 (discussing the difference between ‘paternalism’ and ‘maternalism’). 63 Manning, Seales (n 37) [218]. 64  Judge Hedley, Re Williams [PPPR], this collection. 65  See the discussion of this point in Hunter, ‘Can Feminist Judges’ (n 34) 11 and Hunter, ‘An Account of Feminist Judging’ (n 33) 36–37; E Rackley, ‘The Art and Craft of Writing Judgments: Notes on the Feminist Judgments Project’ in Hunter et al, Feminist Judgments (n 4) 45–46. 66  Hunter, ‘An Account of Feminist Judging’ (n 33) 35. 67  JC Raymond, Writing for the Court (Toronto, Carswell, 2010) 10.

36  Hunter, Stephens, McDonald and Powell when she was off-duty. The feminist judge supports this contextualisation by reference to literature68 about women’s experiences of covert threats and psychological abuse. McLean J’s open ear to the way Ms Croft experienced Mr Brooker’s behaviour leads to the conclusion that the charge was incorrectly substituted by the trial judge, and that had the correct charge of intimidation69 been before the court, the conviction would have been safe. The woman’s story is also emphasised by Judge Hedley in Re Williams [PPPR].70 Judge Hedley was asked to make highly intrusive orders allowing Ms Williams’ (the pseudonym given by the feminist judge in place of the dehumanising ‘W’) clinical team to proceed with a range of medical procedures without her consent, during her labour and birth. Judge Hedley queries whether Ms Williams’ apparent inability to communicate with the doctors over her care may indicate a lack of trust rather than a lack of capacity. She also notes that Ms Williams had been excluded from the proceedings, which was an unjustified procedural error because the legislation requires the person subject to the proceedings to be present.71 Judge Hedley was unable to hear Ms Williams’ voice because she was absent. This is a key factor in Judge Hedley’s decision to adjourn the proceedings. The original decision in Re W [PPPR] included little information about Ms W herself, which made it difficult for Judge Hedley to tell her story. Due to the sensitive nature of the case Holly Hedley would have been unable to obtain the court file in search of further information. This was not the case for Lawson v Housing New Zealand, a judicial review of Housing New Zealand’s decision to move to market rents for state houses.72 Rather than becoming trapped in the legal complexities, Baird J sought to put Mrs Lawson at the centre of her decision.73 She starts by stating that ‘Mrs Joan Olive Marion Lawson and her husband Thomas have been tenants in a two-bedroom state house at 27 Oranga Ave, Onehunga, Auckland for nearly 50 years.’74 She tells of their health concerns, the fact that they raised their children there, and the serious impact on their day to day lives of the move to market rents. The reader is left with a real understanding of the human issues that lie behind the legal issues, including the potential outcome of Mrs Lawson being forced from her community. This story-telling is essential context for the legal analysis that follows. In R v Wang,75 Mrs Wang had attempted to tell her story a number of times, but her claims of violent abuse were dismissed. In considering whether the defence of self-defence should have been put to the jury in her murder trial, the feminist judge emphasises the importance of Mrs Wang’s subjective experience. By telling Mrs Wang’s story, the context in which she killed her husband becomes clear, and the significance of the majority judgment

68  R Busch, ‘Don’t Throw Bouquets at Me … (Judges) Will Say We’re in Love: An Analysis of New Zealand Judges’ Attitudes Towards Domestic Violence’ in J Stubbs (ed), Women, Male Violence and the Law (Sydney, The Federation Press, 1994) 105; L Mills, ‘Killing Her Softly: Intimate Abuse and the Violence of State Intervention’ (1999–2000) 113 Harvard Law Review 550. 69  Summary Offences Act 1981 (NZ), s 21(1)(d). 70 Hedley, Re Williams (n 64). 71  Protection of Personal and Property Rights Act 1993 (NZ), s 74. 72  Lawson v Housing New Zealand [1997] 2 NZLR 474 (HC). 73  Much like the approach taken in H Carr and C Hunter, ‘YL v Birmingham City Council and Others’ in Hunter et al, Feminist Judgments (n 4) 318. 74 Baird, Lawson (n 52). 75 Midson, Wang (n 42).

Introducing the Feminist and Mana Wahine Judgments 37 in conflating the subjective and objective limbs of the legal test for self-defence76 is exposed as a tool to avoid having to believe her. The way a judge tells the story has the potential to render a witness’s evidence appear more or less credible to the reader. This is particularly important in sexual violence cases, a context in which women’s allegations are commonly dismissed, and the experience of the legal process can exacerbate women’s trauma.77 In the employment case of Air Nelson v C,78 the Employment Court had relied on the evidence of one of airline pilot C’s colleagues, even though he had no specific knowledge of the events in question, over the corroborated evidence of flight attendant FA that she had been sexually abused, leading commentator Annick Masselot to note that the situation ‘has the distinct flavour of an “old boys’ network”, which contributes to perpetuating male power and privileges, while disregarding women’s interests and ultimately undermining the law on sexual harassment’.79 Instead, Catran and Coleman JJ validate the woman’s experience of harassment, using social science research to emphasise how rare it is for a woman to make a false accusation of sexual abuse,80 and conclude that the Employment Court made an error of law in questioning the woman’s credibility in the circumstances. Women’s stories sometimes emerge indirectly in the collection. In Bruce v Edwards,81 Johnston and Hori Te Pa JJ beautifully describe the social history of the Taranaki whenua, the subject of the dispute. The woman in this story is papatuanuku. By recounting the story of the whenua the feminist judges connect the customary owners to the whenua and illustrate its cultural significance, which underlies the legal principles in Te Ture Whenua Maori (Maori Land) Act 1993, and provides the key to determining the legal dispute. In Hallagan v Medical Council of New Zealand,82 women’s experiences emerge in another way. Powell J identifies that the case was not just about the parties—doctors and the New ­Zealand Medical Council—but also about the access of women to abortion. Women’s rights as patients are therefore an essential part of the legal context for the decision, even though this perspective was not represented before the court. Sometimes a feminist judge might deliberately refrain from telling parts of the story. As it was irrelevant to the issue of her capacity to make decisions about her healthcare, in Re Williams [PPPR] Judge Hedley saw no need to dehumanise Ms Williams by describing the circumstances by which she came to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992.83 Similarly, in Caldwell v Caldwell Judge ­Ballantyne chose to discuss the medical care Mrs Caldwell was receiving for her depression at a very

76 

Crimes Act 1961 (NZ), s 48. eg, E McDonald, ‘Complainant Desire for Information, Consultation and Support: How to Respond and Who Should Provide?’ in E McDonald and Y Tinsley (eds), From Real Rape to Real Justice: Prosecuting Rape in New Zealand (Wellington, Victoria University Press, 2011) 168; V Kingi et al, Responding to Sexual Violence: Pathways to Recovery (Wellington, Ministry of Women’s Affairs, 2009); EW Thomas, ‘Was Eve Merely Framed, or Was She Forsaken?’ [1994] New Zealand Law Journal 368. 78  Catran and Coleman, Air Nelson (n 44). 79  A Masselot, ‘She Said, He Said: From Myth to Reality’, this collection. 80  A Grubb and E Turner, ‘Attribution of Blame in Rape Cases: A Review of the Impact of Rape Myth Acceptance, Gender Role Conformity and Substance Use on Victim Blaming’ (2012) 17 Aggression and Violent Behaviour 433, 445. 81  Johnston and Hori Te Pa JJ, Bruce v Edwards, this collection. 82 Powell, Hallagan (n 54). 83 Hedley, Williams (n 64). 77  See,

38  Hunter, Stephens, McDonald and Powell general level, to protect her dignity and privacy.84 Stephens J starts her feminist judgment in Ruka v Department of Social Welfare with a brief and compassionate description of Ms Ruka’s relationship with ‘T’, just long enough to make her plight clear so that the context in which she claimed a domestic purposes benefit, despite living with ‘T’ could be properly understood.85 The feminist judge deliberately refrains from going into unnecessary detail which might further dehumanise Ms Ruka.

Challenging Gender Bias and the Delivery of ‘Equality’ In the context of talking about gender bias, we need also to scrutinise the concept of “bias”. “Bias” is a term that connotes some deviation from what is presented as an otherwise objectively ascertainable correct or neutral position.86

EM: In defining bias in this way, it is apparent that in order to expose it, there must be a challenge to a statement’s assumed neutrality. Early feminist critiques of the law took to task the standard of a ‘reasonable man’ and exposed the standard’s inability to accommodate at least half the population, even when the word ‘man’ was replaced with ‘person’. The link between gender bias and claims for equality is also apparent. The setting of a particular (male) standard of behaviour and requiring all others (including women) to meet that standard in order to receive equal treatment was exposed as inequitable when the gender bias inherent in the standard was articulated. Giving all people, regardless of gender, the same rights and responsibilities does not ensure substantive equality when only one gender (cis men) can meaningfully access those rights. For example, a law that criminalises sexual offending against all people does not deliver equality of outcome if it is only enforced when it occurs in particular places and in particular ways. Feminists have therefore exposed the gender bias of legislation and judgments that are seemingly objective and ‘equal’ as written, by demonstrating how legislation impacts unevenly and judgments are partial. Claims seen in judgments such as ‘experience has shown us’, ‘as far as I am aware’ and ‘from what I have observed’, are statements intended to present some sort of universal truth. In fact, often such claims merely reflect the background, life experience and world view of the particular judge or decision maker. These and other pronouncements about shared human experiences are red flags for feminists. In the context of criminal law, claims about what a reasonable person might have thought underpin assessments of culpability. If there is no actual reasonable person and this standard is a fictional creation in order for others to make a judgement about someone’s behaviour, then the gendered nature of that standard should be of concern. In the context of the rules of evidence, the fundamental inquiry of relevance is also based around notions of what world view a reasonable person has. This reasonable person, in terms of admissibility inquiries, is the judge. Their world view must then be unbiased, free from their own particular experiences and opinions. But can it ever really be so?

84 Ballantyne, Caldwell 85  86 

(48). Social Security Act 1964 (NZ), s 63(b). Graycar, ‘The Gender of Judgments’ (n 20) 4.

Introducing the Feminist and Mana Wahine Judgments 39 Part of the work of feminists has therefore been to ‘disrupt law’s underlying adherence to a “common sense” that reflects a partial view of the world’87 and to ‘confront the epistemological processes by which legal discourses construct reality and give authority to particular versions of events’.88 The feminist judges in this volume do these things by exposing gender bias and problematising those claims which are presented as universally true. This is not to say that judges are unaware of the risk of acting on their own biases. In Aotearoa New Zealand judges are ‘provided with education to assist them in identifying how decision making is shaped by unconscious prejudices, to acknowledge that modern science and research on this topic applies to judges and to neutralise the impact of those prejudices when they come to make a decision.’ As Winkelmann J acknowledges: ‘The effect of unconscious prejudice is particularly acute for judges because of the nature and importance for society of the work we do. Because we are human, we all come with our settled ways of thinking about things’.89 In acknowledgment of Glazebrook J’s support for these projects, and her inspirational willingness to confront her own perspectives and assumptions, I first consider the work of Cross J in her reimagining of one of Glazebrook J’s own decisions for the Court of Appeal. In Vuletich v R the appellant had been charged with raping a former girlfriend as well as the sexual violation of a recent acquaintance. He appealed against the decision to join the trials and to allow the evidence of the second violation to be used as propensity evidence. Cross J, in the feminist judgment, emphasises the unlikely coincidence of two such events independently occurring close in time, as well as the importance of bolstering the credibility of young women in acquaintance rape cases. The feminist judge seeks to correct misconceptions about acquaintance rape as part of her decision, and in doing so arrives at a different view about admissibility. The modus for those who prey on young women need not be any more of a signature than the fact it demonstrates a repeated willingness to proceed even in the face of a lack of consent—to look for more means propensity evidence of prior acquaintance rapes will rarely be admissible. R v S is another decision in which the feminist judge challenges contemporary iterations of rape mythology—also by focusing on the representation of male sexuality. In this case, unusually a Crown appeal from an acquittal in a judge alone trial on a question of law, Benton-Greig J disagrees with the majority that a defence of reasonable belief in consent is available, even where the defendant knows the young woman (his partner at the time) was unconscious, as a result of drug-taking. In her judgment she seeks to expose that the majority’s interpretation of the legislation introduces a ‘consent gap’—where there is by law no consent, yet no rape may actually be established. The majority’s conclusion seems to undermine the efforts of advocates who supported the change to s 128A, which the feminist reimagining does not. In R v Sturm the feminist judge critiques the type of ‘consensual’ sexual interactions which are envisaged by the common law consent structure, and reinforced in the Court of Appeal’s other judgments. As Croskery-Hewitt J argues, viewing the choice to become intoxicated as indicative of consent to sex treats a complainant’s willingness to take intoxicants (whether drugs or alcohol) as suggestive of an entirely unrelated desire, and implies a 87  88  89 

ibid 21. ibid 20. 26 August 2015, letter to Law Foundation in support of the project.

40  Hunter, Stephens, McDonald and Powell degree of prior fault on behalf of the complainant. Such a view of complainant behaviour and of its impact on the existence of consent exposes judicial misconceptions of appropriate sexual interaction, and the misapplication of blame in such situations—which should instead be placed on the person who knowingly exploited the intoxicated state of the young men. The feminist judge in the self-defence case of R v Wang is not swayed by the majority’s view that ‘no reasonable person’ would have thought it was necessary to kill an abusive partner. Midson J’s reimagining exposes such a pronouncement as lacking in any understanding of the situation of a terrified and socially isolated woman, in an unfamiliar culture. To hold her to the standard of what a reasonable person might do (call the police, leave the house, drive away), demonstrates the gender bias inherent in such a standard. All the feminist judge really needs to do to get to a different result is to believe Mrs Wang’s evidence of her experiences. Women’s experiences of violence and abuse also inform Gourlay J’s additional judgment in the sentencing guideline decision of R v Taueki. While agreeing with the need for guidelines in cases of serious violence, the feminist judge challenges the suggested starting points in each band, while also making the case for a different application of the mitigating and aggravating factors in s 9 of the Sentencing Act 2002. In her view, the guidelines as proposed treat all serious violence as the same in nature, whereas an understanding of the dynamics of domestic violence must lead to a much more nuanced and responsive application of the legislated factors. In Director of Human Rights Proceedings v Goodrum the experience of a female real estate agent in being overlooked for an auctioneer’s position led her to make a discrimination claim against her employers. In justifying promoting an untrained young male estate agent to the role, ahead of the highly successful and trained Ms A, the management team said it was because Ms A did not have the essential qualities to be an auctioneer—she had a lack of physical stature, no X-factor and was not a team player. In her imagined minority decision, Selene Mize compellingly demonstrates that all these unwritten requirements for the role were subjective and highly susceptible to unconscious bias. This feminist decision makes a different, but significant, contribution to the existing work which exposes the gendered nature of employment law. Unconscious bias is also challenged by the feminist judges in the other employment law decision, Air Nelson v C.90 In that case the Employment Court judge had preferred the evidence of a man he deemed to be of ‘great acumen and common sense’ who had no actual knowledge of the events in question, over the corroborated evidence of the female complainant of sexual abuse.91 The feminist judges approach the questions with greater neutrality. The relationship property cases further challenge gender bias and seek substantive ­equality by examining the gendered realities of domestic relationships and looking beyond the artificial limits which have often prevented women from receiving a just share of the former couple’s assets. In Lankow v Rose Bennett J identifies that unjust enrichment is a more appropriate doctrine through which to determine disputes between former de facto p ­ artners because it is less likely to ignore or devalue the contribution made to the 90  91 

Catran and Coleman, Air Nelson (n 43). C v Air Nelson Limited [2011] NZEmplC 27 [59].

r­elationship by the female partner. In V v V92 Judge Adams recognises that the detailed calculation of compensation for post-separation economic disparity served to undo the potential for gender justice and (although he refrains from using the term) substantive equality to be achieved and makes a substantially higher award to the woman than he did in the original judgment.93 In her rewrite of Quilter v Attorney-General,94 Abaffy J tackles equality directly by finding a way to interpret the Marriage Act 1955 so that a same-sex couple could marry. Drawing on the contemporaneous legislative recognition of human rights, including the freedom from discrimination, she takes a step further than the Court of Appeal was willing to do at the time of the original judgment in order to correct this injustice. The final feminist approach to be mentioned is, of course, intersectionality. While this theme has appeared in feminist judgments in other projects, Te Rino takes it much further by seeking to develop a specifically mana wahine framework and to apply it to judgment-writing.

Hei Turuturu Whatu: Defining and Upholding Mana Wahine After the land wars, a Māori woman from Taranaki successfully asserts her right to fish in tidal waters to feed her family. The Court decides that, as an exercise of a customary right, she is entitled to fish with methods not permitted by the general fishing regulations, especially when she is a customary owner of the land on which the fishing takes place. In making this decision, the Court declines to follow numerous doctrines of colonial law, finding them contrary to higher authority or principle. Instead, it reaches a decision informed by an ethic of care.95

In vew of the importance of the concept of mana in Māori legal thinking, how are we to understand mana wahine? In particular, how is mana wahine to be understood as distinct from, or co-existent with feminism? To start, it is important to recognise that mana wahine is an approach that derives from kaupapa Māori.96 There is significant literature defining and articulating kaupapa Māori,97 but for our simple purposes kaupapa Māori is a method, framework or approach that genuinely places Māori people, and Māori practices at the centre of a given initiative or project. Linda Smith identified kaupapa Māori as being broader than a research methodology or conceptual framework. Kaupapa Māori is actually:98 92 Adams, V

v V (n 46). V v V [2002] NZFLR 1105. Abaffy J, Quilter v Attorney-General, this collection. 95  This section includes short summaries of the cases applying a method based on mana wahine. This first summary derives from the rewritten judgment in the case of Waipapakura v Hempton (1914) 33 NZLR 1065 (SC). 96  J Hutchings, ‘Mana Wahine me Te Raweke Ira: Māori Feminist Thought and Genetic Modification’ (2005) 19 Women’s Studies Journal 48. 97 L Pihama, K Southey and S Tiakiwai, Kaupapa Rangahau: A Reader: A Collection of Readings from the ­Kaupapa  Māori Research Workshops Series (Hamilton, Te Kotahi Research Institute, 2015). 98  LT Smith, Decolonizing Methodologies: Research and Indigenous People (Dunedin, University of Otago Press, 1999) 191. 93  94 

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a social project; it weaves in and out of Māori cultural beliefs and values, Western ways of knowing, Māori histories and experiences under colonialism.

Mana wahine then, at its broadest, is an approach to an initiative or project that places Māori women, and the primary concerns of Māori women, at its centre. There is an aspect of both kaupapa Māori, and its daughter, mana wahine, that is restorative. By placing Māori at the centre of design and operation of any project, and by normalising and legitimising Māori ways of thinking, over a century of effective marginalisation of Māori ways of life and thought is rolled back, just a little. Kaupapa Māori and mana wahine are inevitably ‘decolonising methodologies’ after all.99 An approach based on mana wahine must therefore be intersectional. Māori women experience sexism and homophobia or transphobia, as well as discrimination based on ethnic or cultural identity, as well as deprivation and marginalisation based on the legacy of colonialism. Māori women are more likely than other ethnic groups in New Zealand to be poor, in poor health, reliant on social assistance, to have experienced loss of land, language and culture in recent generations, as well as other kinds of loss and vulnerability arising from gender discrimination. Along these intersecting lines ‘of power and resistence’ can be seen the experiences and realities of women’s lives,100 including Māori lives and experiences. Somewhere between the intersecting lines of being Māori, female, often socio-economically disadvantaged, and living with the legacy of colonisation, are spaces where those lines connect. It can certainly be argued that those of us working within the mana wahine strand of this project reside then at the ‘messy intersection:’101 This can be a marginal place, but may not remain so.102 From the borders of the vast and expanding territory that is the margin, that exists ‘outside’ the security zone, outside the gated and fortified community.

New ideas and new interconnected ways of understanding women’s experiences can place women at the centre of analysis, rather than the margins, in ways that do not erase the experience of women of colour.103 In fact, approaches based on mana wahine may well claim the gated and fortified community of that very centre. As Linda Smith identifies, such intersectional spaces are not limited, and in Māori thinking can be broad indeed:104 Making space within such sites has become characteristic of many Maori struggles in education, health research, and social justice. What is slightly different between this notion and the idea of struggles in the margins is that, when attached to a political idea such as rangatiratanga, often translated as sovereignty or self-determination, then all space in New Zealand can be regarded as Māori space [emphasis added].

99 

See generally, ibid. C Mohanty, ‘Cartographies of Struggles: Third World Women and The Politics of Feminism’, in C Mohanty, A Russo and L Torres (eds), Third World Women and the Politics of Feminism (Bloomington, Indiana University Press, 1991) 1, 2. 101 ibid. 102  See generally LT Smith, ‘Choosing the Margins: The Role of Research in Indigenous Struggles for Social Justice’ in NG Denzin and M Giardina (eds), Qualitative Inquiry and the Conservative Challenge (London, Left Coast Press, 2006) 152. 103  K Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of Chicago Legal Forum 139. 104  Smith, ‘Choosing the Margins’ (n 102) 152. 100 

Introducing the Feminist and Mana Wahine Judgments 43

Bruce v Edwards is the story of a Māori whānau trying desperately to cling to the legal ties that ­connect them with their whenua tūpuna, their ancestral land. Although they no longer reside on the whenua as their tūpuna did in ancient times, the whānau have deep connections with Oeo as Papatūānuku, as their waiū, as their taonga tuku iho. Oeo, in the shadow of Taranaki maunga, has always been of great significance to the whānau and hapū of Ngāti Tama-Ahuroa, Ngāti Titahi, and Ngāti Ruanui hundreds of years before colonisation, before the devasting Taranaki Wars, and will remain so even after all legal ties have been cut between the whānau and hapū and their ancestral land, land that is and always will be a taonga tuku iho.105

It is at the point of claiming rights, however, that tensions may be clearly seen between the universal goals of feminism, and the more culturally specific goal of upholding mana wahine.106 A simple example might suffice to illustrate the tension. In Māori pōwhiri, or welcome rituals, in most tribal areas, women will carry out karanga, and waiata, but not whaikōrero, usually considered to be the domain of men.107 Pōwhiri have consequently been subject to anti-discrimination cases.108 Advocacy of a right to participate in an event without discrimination on the basis of gender would fall within the sphere of feminism. Broadly stated, these rights include the right to freedom of expression,109 if women so wished; and to pursue such activities in a manner free from gender discrimination.110 Such activities might include sitting with men at the front of a pōwhiri, or speaking on the marae. Seeking the affirmation of a cultural right to preserve and uphold karanga, as a customary practice, for generations of Māori women, might be considered to be the proper domain of mana wahine. Those rights are sourced within Māori law, and are also protected under international law and in the domestic human rights framework including the rights to participate, on a collective basis, in the culture of a minority group free from discrimination, and to the language of that minority group on its own terms.111 Such individuals can also call upon a set of specific rights protected pursuant to Articles 2 and 3 of the Treaty of Waitangi, whereby the Crown owes an active duty of protection over taonga, including the Māori language and tikanga Māori. Judges operating from the perspective of mana wahine must negotiate how to keep the broader needs, rights and rangatiratanga of Māori women at the centre of their analysis,

105 

Bruce v Edwards [2002] NZCA 294, [2003] 1 NZLR 515. Or perhaps of cultural justice. For a discussion on the notion of cultural justice and the politics of recognition see B Baum, ‘Feminist Politics of Recognition’ (2004) 29 Signs 1073, 1075. 107  It is not unknown to have Ngāpuhi males call in response to karanga, for transgender women to carry out karanga, or Pākehā women to karanga as discussed in episodes 10 and 11, Series 2, Karanga: First Voice (Māori Television Service) available to view at www.maoritelevision.com/tv/shows/karanga-first-voice. 108  Bullock v Department of Corrections [2008] NZHRRT 28. The Human Rights Review Tribunal found that a limitation on a woman’s speaking rights and direction that she sit at the back during a graduation ceremony constituted discrimination on the grounds of sex. 109  New Zealand Bill of Rights Act (NZBORA) 1990 (NZ), s 14. 110  NZBORA 1990, s 19(1), Human Rights Act 1993 (NZ), s 21(1)(a). 111  As protected under NZBORA 1990, s 20. 106 

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This project then can claim, or lay claim to, this broad Māori space.

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while not losing sight of cultural particularity that, perhaps by definition, embraces the margins of women’s experiences. Auē, te mamae. When we think of what our moko suffered at the hands of that man, we weep. Yet she survived; she got a benefit, and she worked, and the whānau survived. That at least comforts us. ­Marriage? Those two? Kao. If we could have reached down through time and whakapapa, the moment he laid hands on her, that ‘relationship’ would have been dead and buried. Where was his people’s regard for her mana, her tapu? What about that boy? His/Theirs was the hara, the breach, not hers. How could there be a true marriage of any kind when our moko was so alone? Without the safety of matua rau? Our moko was doing all she could, with all she had. And she survived. And we are with her still. Ko tērā te mea nui.112

Weaving the Cross Threads: A Framework for Judgment Writing At first glance, and with subsequent glances, the clutch of cases denoted ‘mana wahine’ are diverse, rewritten without a particular, obvious method. How then may they be claimed as ‘mana wahine’ cases in the first place? It has only been in the writing and in the months of word-wrestling that our mana wahine approach has become clearer. Among other things, mana wahine analysis is not essentialist: there is no threshold of cultural or blood quantum Māoriness that qualifies someone to operate from a mana wahine perspective. On the other hand, this is not a free-for-all, and the six judgments and related commentaries do reveal five aspects in common, despite the wide variance in subject matter, law and legal argument and authorship. None of the authors collaborated on other judgments and commentaries after the initial workshops. These five aspects perhaps comprise a unifying framework,113 and include: —— Claiming visible space for Māori women, and for Māori people generally. This approach also seeks to make visible Māori ways of life in the language of the judgments; —— Identifying rights and obligations that, if affirmed, would uphold the mana of Māori women and their families. These rights and obligations are sourced in Māori law, and protected by the Treaty of Waitangi, and by international law. —— Placing Māori concerns and Māori people at the centre of the factual and legal analysis, rather than restricting things Māori to the margins. —— Applying legal tests so as to include Māori everyday reality, rather than an abstract or idealised notion of Māori life. —— Paying respect to Māori values and principles including whakapapa, manaakitanga, whanaungatanga, aroha, and utu. 112 An imaginative take on one of the rewritten judgments, in this case, for Ruka v Department of Social ­Welfare [1997] 1 NZLR 154 (CA), from the perspective of an ancestor of the woman at the heart of the case. 113  Considerable work has begun in theorising an indigenous five-point framework as a method of indigenous judgment writing. See V Napoleon, ‘Tsilhqot’in Law of Consent’ (2015) 48 University of British Columbia Law Review 873. See also H Friedland and V Napoleon, ‘Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions’ (2015) 1 Lakehead Law Journal 16.

When we were called on to that marae on the day of the unveiling, there was some of what you’d expect; words of welcome, singing, greetings between us and them … So we were all supposed to be one, right? They were supposed to be my people too. They were supposed to know my name. But there was no safety for me, no poho to rest in. So when the attacks, the kicks, and punches came that night, where was I to go? Not to them. Never to them. So I did it. I drove to the hospital in the red fug of alcohol and pain. It was all I could do.114

Claiming visible space Judges recognise Māori women’s agency, authority and status as individuals and as ­members of a collective. All participants name the Māori plaintiffs, applicants or defendents, using appropriate titles, identifying tribal affiliations, where known.115 Māori words, phrases and sometimes whakatauākī are employed that encapsulate some important aspect of the case, perhaps, but more importantly, of the person or people affected by the context in which the case occurs.116 In this aspect, judges by and large seek to avoid homogenising the Māori female experience, thus paying due respect to the realities of postcolonial and posturbanisation­ Māori lives rather than assuming similarity of experience.

Identifying rights and obligations All of the judgments refer to, and uphold, Māori law and customs, including practices associated with: marriage and divorce;117 collective responsibility for wrongs;118 rituals of welcome and acknowledgment;119 looking after family and guests;120 affirming intergenerational rights to land and fisheries;121 rights of participation in group-based decision-making, including democratic processes;122 —— deferring to Māori civic authority such as local marae.123 —— —— —— —— —— ——

114  An imagined observation derived from the facts of Police v Kawiti [2000] 1 NZLR 117 (HC), from the woman at the centre of that case. 115  Gattey J, Waipapakura v Hempton, this collection, Johnston and Hori Te Pa, Bruce v Edwards (n 81) and Yarwood and Pirini, Taylor (n 55). 116 Stephens, Ruka (n 46); Johnston and Hori Te Pa, Bruce v Edwards (n 81); L Hasan-Stein and V Toki, ‘The Truth about Sentencing Māori Women: Giving Context to the Meaning of Mana Wahine’, this collection; M Wilson and JA Whaipooti, ‘Disengaging the Disengaged: the Case of Prisoner Voting’, this collection and Quilmie, Kawiti (n 41). 117 Stephens, Ruka (n 46). 118 Quilmie, Kawiti (n 41) and Toki J, R v Te Tomo, this collection. 119 Quilmie, Kawiti (n 41). 120 Gattey, Waipapakura (n 115) and Quilmie, Kawiti (n 41). 121 Gattey, Waipapakura (n 115) and Johnston and Hori Te Pa, Bruce v Edwards (n 81). 122  Yarwood and Pirini, Taylor (n 55). 123 Toki, Te Tomo (n 118).

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More than mere reference to such practices, the judgments take these practices seriously, assuming such rights and obligations have gravity and consequences, regardless of whether they are recognised in the general legal system. Judges also recognise that these customary practices are sourced in tikanga Māori, but are also protected in some way, such as by ­Articles 2 or 3 of the Treaty of Waitangi, s 20 of the New Zealand Bill of Rights Act 1990 (NZ), or at international law.124 Māori women are exposed daily to discrimination, which, along with the breakdown of familial structures, often relegates Māori women to dependence, rather than exercising tino rangatiratanga. By understanding this, we see the significant challenges that faced Shashana Te Tomo and other Māori women in similar situations. Legislative provisions that allow cultural considerations during sentencing are often ignored or misapplied. Given the disproportionate imprisonment statistics, a fresh approach using the ‘tools’ on hand is needed. Papatūānuku, whom we love and respect, is the primordial earth mother symbolising balance and beauty. When man as the ‘conscious mind of mother earth’ perceives her as a commodity he will pillage and rape until he relearns the obligations to society and the environment. By analogy, colonisation has also devastated Māori women. Only by returning to tikanga Māori can we regain the balance and harmony Papatūānuku symbolises. This commentary and rewritten judgment rekindles aroha and respect for Papatūānuku, and remind us of her importance.125

Placing Māori concerns and Māori people at the centre All participants identified portals through which a mana wahine approach could be employed within the rewritten judgments, as ways to centralise and normalise Māori considerations. In most of the original judgments, the fact the people involved are Māori at all is not commented on. While this caution might seem to ensure, as Glazebrook J identifies, that judges ‘take care not to replace one set of biases for another.’126 On the other hand the overall effect of such abstention is failure to acknowledge the complete context within which Māori individuals before the court reside. Arguably legal and factual analysis is then carried out on a basis of incomplete information. The judgments in this part of the collection identify women and their identity.127 This aspect is also upheld by deliberate use of the work of Māori female scholars, as appropriate, within the texts of the judgments and commentaries.

124  Rights to culture can be found in several instruments, the following being binding on New Zealand at international law: Art 27 of the Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (Art 27 has no force in domestic law, but it may well be considered binding at international customary law); Art 15 of the International Covenant on Economic, Social & Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) UNGA Res 2200A (XXI); Art 27 of the International Covenant on Civil and Political Rights, and Arts 30 and 31 of the Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res 44/25. 125  A precis, written by the authors, of the rewritten sentencing decision in R v Te Tomo [2012] NZHC 71. See also M Marsden and T-A Henare. Kaitiakitanga: A Definitive Introduction to the Holistic World View of the Māori (Wellington, Ministry for the Environment, 1992) 17. 126  ‘Foreword’, this collection. 127  Yarwood and Pirini, Taylor (n 55); Toki, Te Tomo (n 118); Stephens, Ruka (n 46).

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One of the fruits of utilising the orthodox tools of legal and factual analysis is that it becomes entirely possible to see how different and credible (from the perspective of the general legal system) results could have been achieved, simply with a change in perspective. What if determining the choices available to a ‘reasonable person’ could have included choices made by a Māori woman that were informed by culture including collective responsibility for harm caused?128 What if broad administrative discretion could have been ­exercised, taking into account customary factors, that could lead to a woman ­avoiding ­conviction for benefit fraud on the basis that the indicia of Māori customary marriage were absent?129

Paying respect to Māori values and principles Values and practices cannot be extricated from each other. The mana wahine judges all make express or implied reference to Māori values as they pursue their analysis. ­Interpreting ­legislation with a view to achieving the statutory object of land retention, understanding that land provides sustenance for future generations,130 upholds the value of whakapapa131 and kaitiakitanga. Recognising a woman’s right to fish for her whānau and hapū recognises the value of manaakitanga.132 Providing for a woman to serve her sentence at a maraebased programme upholds the value of aroha, among other things.133 Protecting opportunities for Māori (and others) to participate in voting, and potentially, in political dissent, upholds rangatiratanga.134 This project gave us a taste of what mana wahine judging looks like in the context of New Zealand’s existing general legal system. Inevitably the next stage must be to investigate what Māori judging released from the strictures of that system looks like, in the context of other indigenous judging initiatives around the world.

Heoi anō. Ā tōnā wā ka kōrero anō tātou.135 Silencing the disenfranchised, silencing our prisoners, silencing Māori and invisibilising wahine Māori. The fight to allow prisoners the right to vote, perpetuates the struggle we see throughout the justice system; where the numbers speak, Māori experience worse outcomes than non-Māori. In the fight to bring fairness for Māori, the voice of wahine Māori can be lost. Māori women are our fastest growing prison population, and this reality is lost in the ‘normalisation’ of the

128 Quilmie, Kawiti

(n 41). (n 46). 130  Johnston and Hori Te Pa, Bruce v Edwards (n 81). 131  ibid; Stephens, Ruka (n 46). 132 Gattey, Waipapakura (n 115). 133 Toki, Te Tomo (n 118). 134  Yarwood and Pirini, Taylor (n 55). 135  Enough. In good time we’ll speak again. 129 Stephens, Ruka

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‘­overrepresentation of Māori in prisons’. The case of prisoners voting, is a case against the further disengagement of Māori. But when we think prisons, we think ‘Māori’ and we think ‘men’. The irony is that fighting to be engaged and heard in a democratic system, further invisibilises Māori women … In te ao Māori the woman’s voice is the first, in karanga. To be wahine Māori who happens to be a prisoner, means your voice may never been heard. That’s the democratic system of NZ.136

Anei mātou te rōpū whaimana wahine: Those who initially identified themselves, or were invited to join the rōpū whaimana wahine, included the following individuals, working on six judgments and commentaries. —— —— —— —— —— —— —— —— —— —— —— ——

Khylee Quince (Ngāpuhi, Ngāti Porou, Ngāti Kahungungu). Māmari Stephens (Te Rarawa and Ngāti Pākehā). Valmaine Toki (Ngāpuhi, Ngāti Wai and Ngāti Whātua). Linda Hasan-Stein, Hamilton. Mihiata Pirini (Ngati Tuwharetoa and Whakatohea). Julia Whaipooti (Ngāti Porou). Jacinta Ruru (Raukawa and Ngāti Ranginui). Kerensa Johnston (Ngāti Tama, Ngāruahine and Ngāti Whāwhakia). Mariah Hori Te Pa (Muaūpoko, Ngāti Raukawa me Ngāti Rārua). Emma Gattey, Wellington and Wairarapa. Lisa Yarwood, Wellington. John Dawson, Dunedin.

136  A response to issues raised by the decision in this collection Taylor v Attorney General [2015] 3 NZLR 791 (HC).

Part II

Rights, Equality and Relationality

50 

Civil Rights

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Commentary on Taylor v Attorney-General Disengaging the Disengaged: The Case of Prisoner Voting MARGARET WILSON AND JULIA AMUA WHAIPOOTI

E tipu e rea mō ngā rā o tō ao Ko tō ringa ki ngā rākau a te Pākehā Hei ora mō te tinana Ko tō ngākau ki ngā tāonga a ō tïpuna Māori Hei tikitiki mō tō māhuna Ko tō wairua ki tō Atua, Nānā nei ngā mea katoa – Tā Apirana Ngata Grow and branch forth for the days destined to you Your hands to the tools of the Pākehā for the welfare of your body Your heart to the treasures of your ancestors as adornments for your brow Your spirit to your God, who made all things Ka mihi hoki māua ki ngā kaitono wāhine ko Ms Ngaranoa, ko Ms Wilde, ko Ms Fensom, koutou ko Ms Thrupp. Anei a Hikurangi e mihi atu ana. This is an acknowledgement of the women claimants in this case in the pursuit of their right to vote and generations to follow.

Background In 2010 the passing of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (NZ) (Electoral Amendment Act) put a blanket ban on prisoners sentenced after 17 December 2010 on voting in general elections. Before this amendment, only prisoners serving three or more years in prison were prevented from voting. In related proceedings, in 2014, the applicants applied to the High Court for interim relief to have the voting rights (as they had been) ‘reserved’ for the 2014 election.1 If successful this would have enabled the claimants to vote in the 2014 election. Their application and subsequent appeal failed. Two of the claimants also pursued relief before the Waitangi Tribunal by filing an application for their claim to be heard in urgency. However, that course 1 

Taylor v Attorney-General [2014] NZHC 2225, (2014) 10 HRNZ 31.

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of action seems to be effectively null as the applicants failed to file necessary documents in a timely manner to enable their claim to be heard under urgency. It should be noted that in the 2014 High Court hearing, Ellis J declined to address the issue of consistency with Treaty principles on the basis that there was a claim before the Waitangi Tribunal. This 2015 case is a further attempt by the applicants to reinstate their fundamental right to vote.2 Their resolve to be able to engage directly in New Zealand’s democratic system demonstrates not just the disenfranchisement felt by prisoners, but also a perpetuation of the disenfranchisement experienced by Māori that prevents Māori to engage in the systems that governs them, and also disproportionately processes and penalises them.

The High Court Decision The specific issue for determination before the High Court was whether the High Court had the jurisdiction to grant a declaration of inconsistency between the Electoral Amendment Act and s 12 of the New Zealand Bill of Rights Act 1990 (NZBORA) and if so, whether the Court should grant a declaration. Heath J held the Court did have jurisdiction to grant a declaration of inconsistency and granted the declaration. In their feminist judgment, Pirini and Yarwood JJ agree with his decision and address additional issues given the constitutional importance of the judgment, particularly arguments related to te Tiriti o Waitangi/ the Treaty of Waitangi.

The Facts Mr Taylor, Ms Ngaronoa, Ms Wilde, Ms Fensom and Ms Thrupp were all prisoners. The lead litigant, Mr Taylor, was unaffected by the Electoral Amendment Act because he was imprisoned before 16 December 2010. However, his standing was not an issue at the hearing. The four women litigants were affected by the ban, having been sentenced after the Electoral Amendment Act came into force. The applicants had made it clear to the Court that they had sought the declaration of inconsistency because they intended to pursue a remedy under the Optional Protocol to the International Covenant on Civil and Political Rights that requires, under art 2 of that Protocol, the exhaustion of domestic remedies. While a declaration of inconsistency, if granted, would be unenforceable,3 leaving prisoners still unable to vote, the application was a necessary action in pursuit of further remedy. Section 12 of the NZBORA provides that: Every New Zealand citizen who is of or over the age of 18 years— (a) has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot; and (b) is qualified for membership of the House of Representatives. 2 

Taylor v Attorney-General [2015] NZHC 1706, [2015] 3 NZLR 791. the debate regarding the enforceability of declarations of inconsistency, see C Geiringer, ‘On a Road to Nowhere: Implied Declarations of Inconsistency and the New Zealand Bill of Rights Act’ [2009] 40 Victoria ­University Law Review 613, 624. 3  For

This right is subject to s 5 of the NZBORA, which sets out the test that limitations on rights guaranteed in the NZBORA must ‘be demonstrably justified in a free and democratic society’. Under s 7 of the NZBORA the Attorney-General was required to report to Parliament whether the Electoral Amendment Act was justified under the NZBORA (a Section 7 Report). The Attorney-General found it was not justified in a free and democratic society in accordance with s 5 of the NZBORA. The Section 7 Report did not include the gender or Treaty of Waitangi implications of the Electoral Amendment Act. The Section 7 Report was not followed by Parliament, however, and the legislation was enacted. In addition to the specific issue of the right of the High Court to make a declaration of inconsistency, the Taylor case raised wider constitutional issues about the relationship between the Courts and the Parliament; and the roles of the Attorney-General.

Rationale for Prisoner Disenfranchisement Although the NZBORA is not entrenched or superior legislation, it is the primary statutory acknowledgement of fundamental civil and political rights of citizens. The fundamental right to vote is not without restrictions, however. Apart from age, mental capacity and residency, the electoral laws since colonisation have placed various restrictions on the rights of persons in penal institutions to vote. In Taylor, Heath J reviewed the development of the electoral law as it relates to imprisonment and identified the reasons for such restrictions. The underlying rationale for disenfranchisement of some classes of prisoners was that the prisoner had breached the social contract between the citizen and the state.4 A more political rationale that was also given was that the concentration of prisoner voting in one district may affect the voting outcome in that district.5 The extent of disenfranchisement over the years, however, has varied from a complete ban on prisoner voting to relating the ban to the type of offence or the period of imprisonment.6 The rationale for restrictions on prisoners’ right to vote was reconsidered in 1993 during the review of a new Electoral Act to accommodate the introduction of a mixed member proportional electoral system. The review included the question of whether such a restriction was consistent with the recently enacted NZBORA. Parliament eventually agreed to enact s 80(1)(d) of the Electoral Act 1993 limiting prisoner voting disqualification to those serving sentences of three or more years. Support for this formulation was found in the recommendation of the Royal Commission on the Electoral System7 and an opinion of the then Solicitor-General.8 While neither body supported disenfranchisement for all prisoners, a three-year limitation was supported on the grounds that it took account of the triennial election cycle and minimised the possibility of arbitrary application. This limitation was considered to be demonstrably justified in a free and democratic society and therefore compliant with s 5 of the NZBORA. This formulation was also consistent with the notion 4 

Taylor (n 2) [25]. ibid [26]. ibid [18]–[24]. 7  Royal Commission on the Electoral System, Report of the Royal Commission on the Electoral System: Towards a Better Democracy (Wellington, Government Printer, 1986) [9.21] and recommendation 42. 8  Department of Justice, Electoral Reform Bill: Report of the Department of Justice (Wellington, Department of Justice, 1993) 57. 5  6 

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56  Margaret Wilson and Julia Amua Whaipooti

Mana Wahine

of proportionality that was adopted by the European Court of Human Rights when it also addressed the issue of limitation on prisoners’ right to vote.9 Again there was no analysis of the specific effects of the limitation on women or Māori as citizens. Greg Robins notes there was only one case10 that raised the question of whether prisoner voting restrictions are consistent with the NZBORA, and that case dealt with the predecessor of s 80(1).11 Unfortunately, the case was dismissed with an oral judgment that reasoned that where there is a conflict between the plain meaning of the Electoral Act provision and the NZBORA, the Electoral Act prevails, as the NZBORA is not supreme law.12 Robins also notes that between 1975–1977 prisoners were given the right to vote but this was repealed with the election of the Muldoon government.13 There was little debate in Parliament when the restriction was removed, with the then Minister of Justice remarking in support of the Amendment Bill, ‘[t]he imposition of a criminal penalty involves deprivation of liberty, but it should not mean a deprivation of all civil rights, and after conscious consideration we have concluded it would be proper to allow people in custody, as this Bill provides, to cast a vote’.14 Robins’ review concludes that prisoner disenfranchisement cannot be a justifiable limitation on the right to vote. In their feminist rewrite, although Pirini and Yarwood JJ agree with the decision of Heath J, they place emphasis on the historical importance of the right to vote for both Māori and women, as well as for Pākehā men. New Zealand was the first country in the world to give women the right to vote in 1893 after several attempts to enact the legislation. In 1893 Meri Te Tai Mangakahia addressed the Māori Parliament with a plea for Māori women to vote and be represented in the Māori Parliament.15 Subsequently Māori women were included in the 1893 Act so all women got the right to vote. The feminist judges note that women’s campaign for the right to vote was motivated not only by the principled desire for gender equality but also to contribute to the laws that regulated the young colony. Having the right to vote has always been seen as fundamental to New Zealand being a democratic society. The removal of that right is a very serious matter that requires justification. Since colonisation Māori have participated in New Zealand’s constitutional institutions. The right to vote is fundamental to ensuring some influence over the decisions that affect citizens.

Māori Disenfranchisement In their judgment, Pirini and Yarwood JJ discuss the discriminatory effect a prisoner voting ban would have on Māori. In the context of New Zealand’s constitutional history Māori

9 

Hirst v United Kingdom (No 2) [2005] ECHR 681, (2006) 42 EHRR 41. Re Bennett (1993) 2 HRNZ 358 (HC). 11  Electoral Act 1956 (NZ), s 42(1)(d). 12  Re Bennett (n 10). 13  G Robins, ‘The Rights of Prisoners to Vote: A Review of Prisoner Disenfranchisement in New Zealand’ (2006) 4 New Zealand Journal of Public and International Law 165. 14  ibid 168. 15  C Macdonald (ed), The Vote, the Pill, and the Demon Drink: A History of Feminist Writing in New Zealand 1869–1993 (Wellington, Bridget Williams Books, 1993). 10 

have experienced disenfranchisement since the inception of electoral voting. Prior to 1867, private ownership of land was a prerequisite to vote which was in conflict with communal Māori land ownership. The impact of this requirement was that most Māori simply did not qualify to vote.16 The Māori Representation Act 1867 (NZ) then created four Māori seats in what, prima facie, would appear to be an attempt to give Māori a voice and representation in New ­Zealand’s electoral system. But this was a long way from the system initially envisaged under s 71 of the New Zealand Constitution Act 1852. That Act allowed for the creation of Māori districts where Māori law and custom was to be preserved and a system of Māori self-governance maintained. The four-seat solution was instead an attempt to silence Māori dissidence that had fuelled the New Zealand wars for the preceding decade and to conform that dissent into an imported Westminster Parliamentary system. The four seats for Māori at a time when the Māori population was around 50,000 compared to the 72 seats for the European population of 250,000 meant that Māori were left in Parliament with one seat for every 12,500 persons while Europeans had one seat for every 3,500 persons.17 The origin of Māori electoral representation was not really about facilitating Māori electoral participation so much as controlling and corralling Māori dissent. Any modern attempts to undercut Māori representation must therefore be critiqued if not precluded entirely. Pirini and Yarwood JJ also acknowledge that mass imprisonment of Māori means that any prisoner voting ban would perpetuate the disproportionate disenfranchisement of Māori. Māori make up half of our prison population despite representing only 15% of New Zealand’s population. Māori are also more likely to get a prison sentence than non-Māori for the same offence. The prisoners’ voting ban, in effect, perpetuates the structural racism experienced by Māori in the criminal justice system by preventing direct participation in our democratic process.

Parliamentary Process The parliamentary process followed in the enactment of the 2010 Electoral (Disqualification of Sentenced Prisoners) Amendment Bill (NZ) did not reflect the constitutional importance of removing the fundamental right to vote or the impact it may have on various groups. The Bill began life as a Member’s Bill so had not undergone the scrutiny normally attached to a party’s policy commitment. The lack of policy and drafting scrutiny was demonstrated in the Select Committee Report. Instead of the Bill being referred to the Justice and Electoral Committee it was referred to the Law and Order Committee where the majority Government members refused to enable the Justice officials to advise the Committee and relied on the Corrections Ministry officials who could not be expected to possess knowledge of electoral issues.18 The result was that the Bill disenfranchised all prisoners sentenced after 16 December 2010 but enfranchised prisoners imprisoned prior to that date retained that e­ nfranchisement,

16 nzhistory.govt.nz/politics/maori-and-the-vote/setting-up-seats. 17 ibid.

18 Hon Clayton Cosgrove, Electoral (Disqualification of Sentenced Prisoners) Amendment Bill (2010), ­Parliamentary Debates, 667 NZPD 14679, second reading.

Mana Wahine

Taylor v Attorney-General—Commentary 57

58  Margaret Wilson and Julia Amua Whaipooti

Mana Wahine

including the applicant in the case, Mr Taylor.19 The result was disproportionate in terms of the seriousness of the offences that occasioned the imprisonment and led to what has been described as civil death. There appeared to be little public support for the Bill. It attracted 53 submissions of which 51 opposed the Bill. Although the opposition members of Parliament raised the Attorney-General’s Section 7 Report stating the Bill was inconsistent with the rights and freedoms set out in the NZBORA, the promoter of the Bill stated he disagreed with the Attorney-General, mainly on the grounds that anyone who had been imprisoned had committed a serious offence, regardless of the nature of the offence. No evidence was produced to support the statement and as this case demonstrates, Mr Taylor, who was imprisoned for a serious offence, could still vote but Ms Ngaronoa, Ms Wilde, Ms Fensom and Ms Thrupp were deprived of the right to vote regardless of the nature of their offences.

Constitutional Comity The Attorney-General’s argument in the case was that there was no jurisdiction for the Court to make a declaration of inconsistency because the Court was not exercising an interpretative function and there was no precedent for the making of a formal declaration of inconsistency. Heath J considered the provisions of the NZBORA, in particular ss 4, 5, and 6,20 and concluded there was no statutory bar to the High Court making a declaration of inconsistency under s 92J of the Human Rights Act 1993 (NZ).21 The concurring feminist judgment of Pirini and Yarwood JJ agrees with this conclusion. The real issue was whether a declaration of inconsistency was appropriate in the circumstances. The primary argument against the exercise of this jurisdiction was that it would offend the constitutional principle of comity between the legislative and judicial branches of government. This principle is often sourced to art 9 of the 1688 Bill of Rights that basically provides that the proceedings of Parliament should not be questioned by any court.22 The comity between the two branches of government is a convention that requires a balance of judgement, but it is not intended to prevent a court declaring the law as was proposed in this case. More importantly, the question of comity has been addressed in reality through the legislature enacting s 92J of the Human Rights Act which provides for the Human Rights Review Tribunal to make a declaration of inconsistency if there is found to be a breach of the right to freedom from discrimination as protected by s 19 of the NZBORA. The question then is why the Attorney-General would oppose the issuing of a declaration in this case when the declaration was consistent with the Section 7 Report he made to Parliament.

19 

Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, s 6. Sections 4, 5 and 6 operate as a scheme. Section 4 states that other legislative provisions cannot be invalidated or impliedly repealed by reason only that that provision is inconsistent with the NZBORA. Section 5 states that any limitation to NZBORA rights must be reasonable, and ‘demonstrably justified in a free and democratic society’. Section 6 then requires that enactments be interpreted in such a way as to be NZBORA consistent; meaning whenever such a meaning can be given to it. 21  Pursuant to s 92J(2) a remedy comprising a declaration can be issued in appropriate cases that a relevant enactment is inconsistent with the right to freedom from discrimination affirmed by s 19 of NZBORA. 22  The 1688 Bill of Rights is an English Act that applies in New Zealand: Imperial Laws Application Act 1988 (NZ). 20 

There is a lack of clarity around the constitutional status and role of the Attorney-­ General. Although the role of the Attorney-General is laid down in the Cabinet Manual, the independence of the role is constrained by the competing constitutional convention of collective responsibility. The Attorney-General does, however, have the role of representing the public interest, both when making a Section 7 Report to Parliament, and when arguing against a court’s role to make a declaration of inconsistency under the NZBORA. No ­argument appeared in the submissions to the court regarding the impact of the denial of the right to vote on women and/or Māori prisoners generally or on the applicants specifically. The role of the Attorney-General is also of particular significance for Māori as the chief law officer of the Crown who owe specific duties to Māori, in particular those of active protection and partnership pursuant to the Treaty of Waitangi.

The Mana Wahine Judgment This case was heard in the High Court by a bench of three judges because of the c­ onstitutional importance of the matters it addresses. Of note is the fact that, in this judgment, the mana of the women applicants is recognised in part by naming them (even though the title of the case does not name them) and identifying details about them and how they will be directly affected by the ruling in this case as appropriate within the text of the judgment. Although the judgment of Heath J treated the Electoral Amendment Act 1993 as gender neutral, the concurring judgment of Pirini and Yarwood JJ focuses on the need for equal suffrage if there is to be a robust and effective democracy. To have equal suffrage it is necessary to take account of the disproportionate effect on women of the denial of their right to vote. The judgment notes that 94% of women were serving sentences of less than three years in 2012 (compared with 88% of men) and 49.7% of women had sentences of less than six months (compared with 37% of men). Therefore, of the new (from 2010) pool of individuals now liable for disenfranchisement, those serving sentences of less than three years, women will be more affected and bear a disproportionate level of that disenfranchisement. The impact on women who frequently have the primary care for children is also severe. It is important to frame the inequality argument within the context of differences of class and ethnicity amongst women as well as between men and women. If this nuance is not captured the lived experiences of men and women of different classes and ethnicities may be ignored and thus the problem effectively erased from consideration. The feminist judges identify that the primary task before them is to test the extent to which the limit on voting rights under s 80(1)(d) can be justified. As identified above, under s 5 of the NZBORA limits upon rights must be demonstrably justified in a free and democratic society. The test for determining if such limits are justified is one of proportionality of the relevant limit to the legislative objectives and whether a justified end is achieved by proportionate means.23

23 

Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.

Mana Wahine

Taylor v Attorney-General—Commentary 59

60  Margaret Wilson and Julia Amua Whaipooti

Mana Wahine

In carrying out this task the fundamental question in this case then was the nature of the constitutional rights of citizens and in particular women citizens who are in prison, given the importance of the right to vote for New Zealand women. Vicki Jackson notes there is a plurality of feminist constitutional approaches.24 For example, constitutional gender equality requires more than the recognition of equal rights. It also requires gender equality in institutions of authority, including government institutions. She notes:25 Constitutions are meant to create governments that can work, that can provide both justice and material well-being, and protect human rights while maintaining a degree of order necessary for living good lives. Designing a feminist constitution will thus be embedded in the many other projects of concern for constitutions and constitutional law and for women and men.

One of those projects is the right to vote for representatives in Parliament who have the authority to make laws that affect political and civil rights as well as economic, social and cultural rights. The importance of representation in any constitutional framework that purports to support a system of justice is explored by Nancy Fraser in her three dimensional model of justice, in which the failure to recognise, redistribute resources to and represent women within any constitutional system means it is impossible for women to participate fully on an equal basis in decisions that affect them.26 If women prisoners are denied the right to participate in who should represent them in Parliament, then they suffer an injustice. It must also be remembered that Māori women are even more disenfranchised with 58% of the female prison population identifying as Māori.27 The same argument could be made also if men are denied the right to vote. The nature of the injustice experienced by women, however, relies on their gendered role in society. For example, the primary responsibility for the care of children still lies with women. Also, women still lack equal employment opportunities and equal pay. Women, and particularly Māori women are disproportionately represented amongst welfare beneficiaries and therefore dependent on state regulation relating to access to financial support.28 The outdated gendered view of the state on the nature of relationships is demonstrated in the Ruka v DSW case involving a Māori woman convicted for fraudulently claiming benefits while in an alleged relationship that she has consistently denied existed.29

24  VC Jackson, ‘Feminism and Constitutions’ in K Rubenstein and KG Young (eds), The Public Law of Gender: From the Local to the Global (Cambridge, Cambridge University Press, 2016) 43, 44. 25 ibid. 26  N Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World (New York, Columbia University Press, 2009); N Fraser, ‘Mapping the Feminist Imagination: From Redistribution to Recognition to Representation’ (2005) 12 Constellations 295. 27 Based on 2012 census data, see www.stats.govt.nz/browse_for_stats/snapshots-of-nz/yearbook/society/ crime/corrections.aspx. 28  As at September 2016 35.3% of all beneficiaries aged between 18–64 on all forms of social security support were Māori. Māori women are also disproportionately represented within statistics for specific benefit categories such as sole parent support: national level data tables—December 2016, www.msd.govt.nz/about-msd-and-ourwork/publications-resources/statistics/benefit/index.html#Datatables6. 29  C MacLennan, Kathryn’s Story—How the Government Spent Well Over $100,000 and 15 Years Pursuing a Chronically-ill Beneficiary Mother for a Debt She Should Not Have (Child Poverty Action Group, 2016) www.cpag. org.nz/assets/Publications/3-0%20Kathryn’s%20Story-web.pdf. Note that the conviction was eventually overturned on appeal, see Ruka v DSW [1997] 1 NZLR 154 (CA). See also Stephens J, Ruka v DSW, this collection.

Taylor v Attorney-General—Commentary 61

One distinguishing aspect of the feminist judgment is that Pirini and Yarwood JJ deliberately address the role of te Tiriti o Waitangi/the Treaty of Waitangi. In the related proceedings, also in the High Court, as mentioned above, Ellis J declined to address the issue of consistency with Treaty principles on the basis that the Tribunal was seized of the matter at the time of those High Court proceedings. As the matter has not yet been heard by the Tribunal, there was no barrier to the feminist judges in this case addressing the Treaty as a matter of constitutional significance. Indeed, as the judges identify, there is no statutory ambiguity upon which to call upon Treaty principles in the exercise of statutory interpretation, but both Pirini and Yarwood JJ identify that the Treaty obligations of upholding good faith and the rights of citizenship are particularly relevant for consideration of s 80(1). In conclusion, we believe there is still important debate yet to be had on whether any restriction on the right to vote of prisoners is fair. We are certain a blanket ban on all prisoners voting regardless of the nature of the offence is disproportionately discriminatory particularly against Māori, wāhine Māori, and all women generally.

Mana Wahine

Treaty of Waitangi

Mana Wahine

Taylor v Attorney-General

5

10 High Court  Auckland 10 April; 24 July 2015 Heath, Pirini and Yarwood JJ PIRINI AND YARWOOD JJ.

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CIV-2013-404-4141; [2015] HZHC 1706

The essence of the case [81] The essence of this case is whether s 80(1)(d) of the Electoral Act 1993, which disqualifies sentenced prisoners from voting, amounts to an unjustified limitation on the right to vote that is guaranteed by s 12 of the New Zealand Bill of Rights Act 1990 (NZBORA). While the right to vote in s 12 is not absolute—it can be limited by other legislative provisions, and it cannot “trump” other such legislative provisions—any limitations on it must be able to be demonstrably justified in a free and democratic society. If the Court is satisfied that such limit cannot be demonstrably justified, the secondary issue before the court is whether a declaration should be made to that effect. [82] These issues are before us because five prisoners have brought proceedings seeking a declaration that s 80(1)(d) amounts to an unjustified limitation on their right to vote. Four of those five prisoners (Ms Ngaranoa, Ms Wilde, Ms Fensom and Ms Thrupp) are currently serving prison sentences, and unless they are released from prison and duly re-enroll themselves to vote before the next parliamentary election, they will not be entitled to vote in that election. Their interest in the outcome of these proceedings is clear. [83] We have had the advantage of reading in draft the judgment of Heath J and agree with him that s 80(1)(d) is a limit on the right to vote that cannot be demonstrably justified in a free and democratic society. We also agree that the Court should make a declaration to that effect. Because of the constitutional significance of this case we wish to add some further observations, including the relevance of this case to the Crown’s obligations as a partner to te Tiriti o Waitangi/the Treaty of Waitangi. [84] We note that related proceedings have been commenced in the Waitangi Tribunal, claiming that the Crown has breached the principles of te Tiriti o Waitangi/the Treaty of Waitangi by allowing the enactment of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (the amending legislation which introduced s 80(1)(d) into the Electoral Act) and seeking findings including that the amending Act is inconsistent with or in breach of the principles of te Tiriti/the Treaty. Two of the claimants to these proceedings, Ms Ngaranoa and Ms Wilde, are also claimants in the Tribunal proceedings.121

50 121

Wai 2472, Electoral (Disqualification of Sentenced Prisoners) Amendment Act Claim.

Relevant legislative provisions [85] Expressed in simple terms, this case is about the consistency (or inconsistency) of one legislative provision with another. The relevant provisions are found in the Electoral Act 1993 (specifically s 80(1)(d)) and NZBORA (specifically s 12). [86] The Electoral Act sets out the electoral system that operates in New Zealand. It 5 establishes the Electoral Commission, which is responsible for administering that system. It sets out the entitlement of people to enroll to vote in parliamentary elections, which in Aotearoa New Zealand are carried out once every three years. [87] Under s 74, NZ citizens and permanent residents aged 18 or above, who have at some time resided continuously in the country for at least one year, are eligible to enroll. 10 They can then participate in parliamentary elections to choose who will govern the country. Section 74 must be read subject to s 80, which removes the eligibility of certain people who would otherwise be entitled to enroll to vote. Broadly, those persons fall into four main categories: 15 (a) Persons who are outside the country and have not been in the country for a speci122 fied preceding period of time. This reflects an understanding that a person who is outside the jurisdiction of their country of origin for a prolonged period of time, and who is necessarily now subject to the laws and policies of another country, loses their legitimate interest in how the country of origin is governed and, there- 20 fore, their right to participate in the selection of those who will govern that country. (b) Persons who have been adjudged to be lacking in mental capacity pursuant to one of a small number of specified statutes.123 (c) Persons named on the Corrupt Practices List.124 The Corrupt Practices List contains the names of those who have been convicted of a specified offence that 25 amounts to a corrupt practice relating to an election (such as bribery). Those people are disqualified from registering to vote for the period of time their name is on the list. The disqualification reflects the understanding that conduct that puts the electoral system under threat can be met by the temporary removal of that person’s ability to participate in that electoral system. 30 (d) Finally, under s 80(1)(d), prisoners who have been sentenced to a term of imprisonment imposed on or after 16 December 2010 (the date the Electoral (Disqualification of Prisoners) Amendment Act 2010 came into force) are also disqualified from voting. The rationale behind s 80(1)(d) appears to be that those who have committed a serious offence have, by their commission of that offence, also sac- 35 rificed their interest in the democratic governance of the country. [88] The applicants are asking the court to declare that s 80(1)(d) is inconsistent with s 12 of NZBORA, which guarantees the electoral rights of all New Zealand citizens over the age of 18 years. In full, s 12 provides: 12 Electoral rights—Every New Zealand citizen who is over the age of 18 years—

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(a) Has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot; and (b) Is qualified for membership of the House of Representatives.

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Section 80(1)(a): for citizens, within the preceding three years; and s 80(1)(b): for permanent residents, within the preceding 12 months. Section 80(1)(c). See s 100 of the Electoral Act 1993, which establishes the list.

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Mana Wahine

Taylor v Attorney-General—Judgment 63

64  Mihiata Pirini and Lisa Yarwood

Mana Wahine

[89] Pursuant to s 5 of NZBORA, the rights guaranteed in that Act are not absolute and all may be subject to reasonable limits. Section 5 provides: 5 Justified limitations—Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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[90] The disqualifications in s 80 of classes of people who would otherwise be entitled to enroll to vote amount to limits on the right to vote, and must be demonstrably justified in a free and democratic society. Today, the Court is asked to declare an inconsistency only with 10 s 80(1)(d). We assume that the other disqualifications in s 80(1) may all be demonstrably justified in a free and democratic society.

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Proportionality analysis [91] The test for determining whether limits upon rights are demonstrably justified in a free and democratic society is one of proportionality.125 In essence, the proportionality inquiry is concerned with the overall proportionality of the limit to the legislative objective and whether a justified end is achieved by proportionate means. [92] The proportionality inquiry has two parts to it. The first is an analysis of the significance of the objective sought to be achieved, and whether the measure serves a sufficiently important purpose to justify the curtailment of the right. The second is an analysis of the way in which the measure is connected to the purpose sought to be achieved: is it rationally connected and in due proportion to the limit? And does the limit curtail the right no more than is reasonably necessary? [93] As far as the second part of the inquiry, we are in agreement with the conclusions reached by the Attorney-General in his report on the provision. The Bill appears to have as its objective the disenfranchisement of all persons who have committed a serious crime against the community. It achieves this objective through disenfranchising all those who receive a sentence of imprisonment. The measures by which that objective is sought to be achieved may be critiqued on a number of fronts. Relying on the imposition of a term of imprisonment to draw the distinction between serious offending and non-serious offending is inadequate. It is too blunt a tool. The example given by Heath J demonstrates this point; the decision to impose a sentence of imprisonment on a person rather than a sentence of home detention is informed by a number of factors, not just the seriousness of the offending. [94] Similarly, one can see the irrationality of the means by which the objective is sought to be achieved when one compares the vastly different outcomes for person A, sentenced to a one-week prison sentence that happens to coincide with a general election; and person B, sentenced to a two-and-a-half-year prison sentence between elections. Person A will be prevented from voting whereas person B will not. As a measure, blanket prisoner disenfranchisement leads to potentially perverse outcomes, in which a prisoner who is in prison for a week, during which the election takes place, is affected by the measure in a much harsher way purely because of the timing of their period of imprisonment. [95] Having concluded that the measure is not rationally connected to its objective, it is appropriate now for us to consider the first step of the inquiry. Because this involves an assessment of the importance of the legislative objective, a careful approach is needed. Due deference must be paid to policy decisions that are properly within the competence of

125

Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1; R v Oakes [1986] 1 SCR 103.

the executive. But, it is well within the scope of the constitutional role of the judiciary to interpret and apply the law and comment on the constitutional implications of the law to the extent appropriate. Given the constitutional significance of s 80(1)(d), some comment is appropriate here. The principle of participatory governance in New Zealand [96] New Zealand’s constitutional arrangements reflect a system of participatory democracy, whereby the governed have the ability to exercise a degree of choice in respect of those who govern them. That choice is exercised most visibly in parliamentary elections, which in New Zealand are held once every three years. [97] The principle forms a fundamental part of New Zealand’s constitutional framework. It is enshrined and reflected in s 12 of NZBORA, which guarantees the right to vote. The right to vote has been described as a fundamental civic right, because without democratic constraints on those in power, there is a greater potential for infringements of other basic civil and political rights.126 [98] Less symbolic but no less instrumental are the various provisions of the Electoral Act, which set out the mechanics that give effect to the principle of participatory democracy. Section 74 is central, because it sets out who can enroll (and therefore, who can exercise the right to vote that is guaranteed by s 12 of NZBORA). Section 74 is also one of the very few reserved provisions on the statute book. It can be amended or repealed only by a majority vote of 75 per cent in the House of Representatives.127 Interestingly, s 80, which carves out exceptions to s 74, can be amended by a simple majority vote. Nonetheless, parliamentary intent is made clear through the reservation of s 74: the provision setting out the criteria for registration as an elector is of such constitutional importance that to change it requires more than the usual majority vote. [99] Not only does the principle infuse our constitutional arrangements, it also infuses our social history, with New Zealand being well known for its expansion of the franchise in one very significant way. Led by Kate Sheppard, women’s suffrage campaigners (working together under the banner of New Zealand’s Christian Temperance Union) petitioned Parliament for women’s suffrage in 1891, 1892 and 1893, with the final petition signed by more than 32,000 people.128 After the law change recognising women’s suffrage, 82 per cent of eligible women were enrolled to vote by the time of the next general election, just six weeks later.129 The extension of the franchise was, unsurprisingly, widely taken up by those who had previously been unable to participate in the democratic governance of the nation.

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The principle of participatory governance overseas [100] The ability of the governed to participate in matters of governance is a principle that is also reflected overseas. Article 25 of the International Covenant on Civil and Political Rights, from which s 12 of NZBORA takes its wording, recognises and protects the rights 40 of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Thus, the principle of participatory 45 126 127 128 129

Reynolds v Sims (1964) 377 US 533 at 562. Electoral Act 1993, s 268(1)(e). The movement for change was, however, much older, with bills presented to Parliament (and failing narrowly) as early as 1878. See https://nzhistorysearch.wordpress.com/category/nz-political-history/womens-suffrage/.

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Mana Wahine

Taylor v Attorney-General—Judgment 65

66  Mihiata Pirini and Lisa Yarwood

Mana Wahine

governance is recognised at an international level (and has in turn informed our domestic law). [101] The principle of participatory governance, and the effect on it of blanket prisoner disenfranchisement laws, has been considered in overseas case law. In Hirst v United 5 Kingdom,130 the European Court of Human Rights (ECtHR) considered the legality of the United Kingdom’s criminal disenfranchisement law, which deprived all incarcerated individuals of the right to vote, and noted that it was in conflict with the European Convention for the Protection of Human Rights and Fundamental Freedoms, which in art 3 provides for “free elections”.131 10 [102] In Sauvé v Canada,132 the Canadian Supreme Court decided by a 5 to 4 majority that s 51(e) of the Canada Elections Act, which applied disenfranchisement to all prisoners, was unconstitutional and violated s 3 of the Canadian Charter of Rights and Freedoms, and should be struck down. The Canadian Parliament subsequently replaced the blanket prisoner disenfranchisement law with one that applied to prisoners serving two or more years 15 in prison. In 2002 on its second hearing of Sauvé, that amended version of the provision was also struck down by the Supreme Court.133

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Te Tiriti o Waitangi/The Treaty of Waitangi [103] The impact of te Tiriti o Waitangi/the Treaty of Waitangi also renders s 80(1)(d) of constitutional significance. It is now well established that te Tiriti/the Treaty colours all matters to which it has relevance, even if not explicitly mentioned in the legislation.134 There is no statutory ambiguity in the relevant provisions of the Electoral Act in respect of which the consideration of te Tiriti/Treaty principles might have a bearing. Nonetheless the approach still holds, and supports previous judicial dicta of the role of te Tiriti/the Treaty in Aotearoa New Zealand law, including that it forms part of the constitutional fabric of the country.135 [104] This is undeniably so in this case, given that the Crown’s policy, as reflected in the provision that is being challenged in the Court today, has particular and significant implications for Māori, as the judgment goes on to discuss below. Section 80(1)(d) will affect the Māori population in a way that it will not affect other groups. In light of that, some consideration must be given to the Crown’s role as a partner under te Tiriti/the Treaty, including the obligation of both te Tiriti/Treaty partners to act in good faith. Further, the rights of citizenship protected pursuant to Article III of the te Tiriti/the Treaty, of which voting rights surely form a part, cannot be ignored. [105] In related proceedings, also in the High Court, Ellis J declined to address the issue of consistency with the principles of te Tiriti/the Treaty on the basis that the Tribunal was seized of the matter at the time of those HC proceedings. However, the proceeding in the Waitangi Tribunal now appear to have fallen over (in the sense that the applicants had failed to file relevant documents and their claim seems to have gone to the back of the queue). So, in our view there is nothing now preventing us at least addressing with some substance the issue of consistency of the provision with the principles of te Tiriti/the Treaty although there was no argument on that issue before this Court.

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130 131 132 133 134 135

Hirst v United Kingdom (No 2), App No 74025/01, Eur Ct HR (Oct 6, 2005). Ibid, at [71]. Sauvé v Canada (Attorney General) [1993] 2 SCR 438. Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519. Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179. Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 at 210.

Disenfranchising serious offenders: a legitimate objective? [106] Against that background, we turn now to consider the legitimacy of the objective of disenfranchising serious offenders, which as noted above is what we take to be the objective of s 80(1)(d). (a) Civil death and civil virtue [107] A history of prisoner disenfranchisement begins with the concept of civil death, which goes back to ancient Greek and Roman times and continued into medieval ­England.136 Certain crimes gave rise to a “civil death” which meant that someone guilty of a specified crime lost their rights of citizenship (including, where such rights were provided, voting rights). The examples of when civil death was applied appear to indicate that the concept of civil death was, for much of ancient and medieval times, reserved for those who committed serious crimes that affected public welfare—crimes in the nature of treason and attempts against the monarch.137 [108] Voting is sometimes expressed as a right and sometimes as a privilege (in accordance with either the social contract theory or the theory of civil virtue). In relation to the former, and in relation to the voting ban, a criminal act effectively means that the individual in question no longer has the right to vote, as they have failed to satisfy responsibilities concomitant with their status as a citizen. In relation to the latter, a criminal act is seen as evidence of the criminal individual’s inability to uphold their civic duty and act for the collective good. Thus, the criminal no longer has the privilege of voting. [109] However, disenfranchisement based on either of these theories presupposes that those incarcerated for their crimes are deficient in the attributes needed to facilitate the democratic functioning of society. Likewise, both theories presuppose that those who are not incarcerated possess and exercise traits that are absent from the prison population. We cannot accept that because an individual is incarcerated they are immoral. Furthermore, we recognise there are few amongst us who can be said to have never committed a crime, notably public order offences such as traffic violations (clearly not every crime leads to prosecution). [110] Another critique of the social contract theory and the theory of civil virtue is that they presuppose that all members of society are treated equally by the state (consciously or unconsciously). One indicator that this is not necessarily the case in Aotearoa New Zealand is the Waitangi Tribunal’s view that the signing of te Tiriti/the Treaty did not lead to the cession by Māori of their sovereignty.138 The Waitangi Tribunal has not yet gone further to indicate how sovereignty was acquired by the Crown but the implication is that acquisition of sovereignty was presumed, without active acceptance by Māori. The reality is a power imbalance between the Crown and Māori from colonial times whereby the Crown assumed political domination. Political disenfranchisement continued given that in early colonial times, voting entitlement was linked to individualised ownership of property. Few Māori had individualised property holdings, thus few had access to voting rights, limiting the dissent Māori were able to exercise through the mechanism of voting. Even when Māori representation was enacted with the creation of the Māori electoral seats in 1867,139 the seats were numerically inadequate for the Māori population, thus the power imbalance was retained.

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45 136 137 138 139

Robins, G The Rights of Prisoners to Vote: A Review of Prisoner Disenfranchisement in New Zealand (2006) 4 NZJPL 165 at 166. Ibid, at 167. Waitangi Tribunal He Whakaputanga me te Tiriti—The Declaration and the Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry—Volume 2 (Wai 1040, Wellington 2014) at 526–527. Pursuant to the Maori Representation Act 1867.

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Taylor v Attorney-General—Judgment 67

68  Mihiata Pirini and Lisa Yarwood

Mana Wahine

5

(b) Modern-day rationales for prisoner disenfranchisement [111] Various rationales have been put forth in modern times for a provision that disenfranchises every person sentenced to a term of imprisonment, for the duration of their imprisonment. These include that: (a) Disenfranchisement is the necessary punishment that follows from having committed an offence that is sufficiently serious as to warrant imprisonment. As such, prisoner disenfranchisement as a form of punishment might be said to contribute to, for example, deterrence and rehabilitation.140 (b) Prisoners have no need to influence a community with which his/her links have been severed. Preventing a serving prisoner from voting is a natural consequence of the prisoner’s absence from the community whose future is being influenced by the election in question. (c) Prison order needs to be maintained. Prisoner enfranchisement would require the exercise of rights concomitant with the democratic voting process, namely freedom of association and assembly, which may be argued to be “inconsistent with prisoner discipline”.141

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[112] In our view, none of these rationales stand up to close scrutiny. [113] Imprisonment necessarily gives rise to a loss of those rights that are consistent with the requirements necessary for a prisoner’s proper containment and management in the institution of the prison. However, it does not follow that disenfranchisement must be the result of having committed an offence that leads to imposition of a sentence of imprisonment. And prisoner disenfranchisement may be unnecessarily punitive for those prisoners who are serving a short term of imprisonment. [114] Incarceration does not insulate prisoners against the effect of the policies of the government of the day. Most obviously, prisoners will be directly affected by the government’s correctional policies, and policies that will affect them upon their release. Prisoners will have children, families, and other people who live in the community in whose lives those prisoners have a stake or an interest. For all those reasons, prisoners may be expected to be interested in the government and wish to influence the government through the democratic exercise of their vote. [115] We note the comments of the majority of the Supreme Court of Canada in Sauvé v Canada (No 2)142 that “neither the record nor common sense supports the claim that disenfranchisement deters crime or rehabilitates criminals”.143 Indeed, it was suggested by McLachlin CJ in that case that the inclusion of prisoners in the electoral process might be the best way to improve democracy and the legitimacy of the state.144 There could be a legitimate public interest in seeking to empower and enfranchise prisoners during the term of their imprisonment, or at the least to refrain from enacting any policy that would further disempower them or disenfranchise them while they are in prison. [116] One would expect careful consideration to be given by the legislature as to how to weigh such a measure as s 80(1)(d) against the broader public interest in encouraging participatory democracy, and the risk that disqualifying prisoners from enrolling to vote could

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Sentencing Act 2002, s 7(1). Royal Commission on the Electoral System, Report of the Royal Commission on the Electoral System: Towards a Better Democracy (Government Printer, Wellington, 1986), at [9.17] and [9.19]. Sauvé v Canada (Chief Electoral Officer) [2002] SCC 68. Ibid, at [49] per McLachlin CJ. Ibid, at [30–32] per McLachlin CJ.

ultimately lead to lifelong disenfranchisement of at least some of those prisoners. We note that as a collateral effect of the provision, there is the imposition of an additional burden on disqualified prisoners by requiring them to re-enrol to vote upon their release.145 Thus s 80(1)(d) has the potential to act as an ongoing barrier against an ex-prisoner exercising their democratic rights. Discriminatory effect? [117] We have also had to consider the potentially discriminatory effect of this provision, given that it is likely to have a specific and probably detrimental effect on two groups in our society in specific ways. [118] Statistics tell us that most women in prison are serving a sentence of less than three years.146 Previously, the prisoner voting exclusion would not have caught most women sentenced to a term of imprisonment. From 16 December 2010 onwards, the prisoner voting exclusion will capture a great many more women sentenced to a term of imprisonment. In real terms, in 2014, 602 women were imprisoned but only 55 were imprisoned for a term of three years or more. Thus, women prisoners are going to feel the effect of this provision more strongly than other imprisoned groups. [119] The second obvious group on whom the provision will have a disproportionate effect is Māori. Māori are a highly-incarcerated population. Purely by way of a small number of illustrations, statistics show that over three per cent of 23-year-old Māori males are sentenced to prison on any given day, compared to 0.4 per cent of New Zealand European males of the same age. Maori are also over-represented among female prisoners, with 57 per cent of the female prison population identifying as Māori. Fifteen per cent of the country identified as being Māori in the 2013 census, but Māori make up 51 per cent of the total prison population. [120] Māori electoral representation is arguably also made more vulnerable because of this policy. It is plausible that a large proportion of Māori prisoners who are disenfranchised pursuant to s 80(1)(d) would, had they the right, have chosen to enroll to vote on the Māori roll. Because there is now no possibility of them doing so, and because of disproportionate Māori imprisonment, s 80(1)(d) can be expected to have a direct impact on the total number of Māori seats in Parliament (these being determined by the number of people on the Māori roll) and the ability of Māori to participate in the governance of the country and to obtain the full benefits of the Māori electoral voting system. [121] Māori are over-represented in almost all negative socio-economic indicators. Being able to vote is one of the few tools available to marginalised populations to attempt to redress the balance. The right to vote follows regardless of one’s socio-economic standing, upbringing, or education level. Depriving prisoners of the right to vote will, it is clear, have a disproportionately harsh effect on Māori, and takes away one of the tools available to redress that balance. [122] Inhibiting the ability of Māori to comment, by way of the franchise, on policies that affect their children and whānau is likely to have long-lasting and inter-generational effects and perpetuate continued exclusion of Māori from social services and institutions.

145 146

The select committee considering the Bill turned its mind to this problem and noted that it had considered a proposal to streamline the process for re-registering prisoners upon their release, but decided it would be too administratively difficult. The figure in 2012 was 94% of women prisoners compared to 88% of men were serving sentences of less than three years. 50% of all women prisoners are serving sentences of less than six months compared to 37% of male prisoners. Department of Corrections Trends in the Offender Population—2013 (10 April 2014).

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This is on top of the fact that Māori already have reduced democratic participation rates; for instance, in the 2014 general election, 68 per cent of Māori who were enrolled went on to vote, compared to 78 per cent of non-Māori who were enrolled actually going on to vote.147 5 [123] In sum, the effect of the provision in question will manifest itself in a different manner for women and for Māori than it will for other populations, and often those groups will intersect. The potentially discriminatory effect of the policy on those two groups in our society—groups who historically have been marginalised when it comes to the franchise— has informed our consideration of the significance of the policy objective reflected in 10 s 80(1)(d). Conclusion [124] We have considered the various rationales on which s 80(1)(d) may be justified. We have done so in light of the effect of s 80(1)(d) on the principle of participatory 15 democracy and on the obligations of the Crown as a partner to te Tiriti/the Treaty including upholding good faith and the protection in Article III of rights of citizenship. [125] Ultimately, and having due regard to the need to exercise a degree of deference when the legitimate policy choices of the executive are at issue, we choose to express no view on whether disenfranchising those who have committed a serious offence is suffi20 ciently significant and important as to justify the limitation on the voting right guaranteed by NZBORA. Articulating a view on that point is not necessary for us to reach our conclusion that s 80(1)(d) is a limit on the right to vote that cannot be demonstrably justified in a free and democratic society. 25 The Court’s jurisdiction to make a declaration of inconsistency with NZBORA and the question of remedy [126] There are a number of appellate authorities in which the courts have considered the nature of the jurisdiction to grant a remedy of a declaration of inconsistency in NZBORA proceedings.148 We agree with the analysis of Heath J that the High Court has jurisdiction 30 in the strict sense under NZBORA to grant a declaration of inconsistency in proceedings such as this. The question is whether, in the particular circumstances, it is appropriate for this Court to exercise its discretion to grant such a declaration. In examining that question, we have taken account of both the public and the private purposes of granting a declaration. [127] The respondent submits that because there is no live controversy between the parties 35 to the case, a declaration would be purely academic. We are not persuaded by the argument that a declaration would serve a purely academic purpose here. Because this is a case of constitutional importance, a declaration will serve an important public purpose. It will draw to the attention of the public of Aotearoa New Zealand that Parliament has enacted legislation inconsistent with a fundamental right. It will serve an educator function for the 40 general public in terms of Aotearoa New Zealand’s constitutional arrangements. [128] Moreover, even though this case may properly be described as one in which there is no “live” controversy between the parties, it does not follow that the granting of a declaration will serve no private purpose for the applicants to these proceedings. We are aware of how s 80(1)(d) has affected one of the applicants in these proceedings through explicit 45 147 148

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Electoral Commission “2014 General Election Voter Turnout Statistics” (2014) . Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA); R v Poumako [2000] 2 NZLR 695 (CA); Zaoui v Attorney-General [2004] 2 NZLR 339 (HC); Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.

statements in other fora. For instance, Hinemanu Ngaronoa (Ngāti Porou), in an affidavit filed in the related Waitangi Tribunal proceedings,149 states the effect that disenfranchisement has had on both her and her family (she has three children aged 11, nine and three). We can assume that the provision has had a similarly significant effect on the other applicants in these proceedings. [129] For Ms Ngaronoa and for the other claimants in this case who are directly affected by the prisoner voting ban, the granting of a declaration of inconsistency is more than an academic or hypothetical exercise. A declaration is declaratory of their rights, and as such it vindicates those rights.

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10 Result [130] The four claimants who will be affected by the prisoner voting ban have a legitimate interest in the welfare of their children and in their communities. There is no doubting that by their offending they have made decisions detrimental to society. They have been sanctioned accordingly under laws given effect to by a democratically elected Parliament. The 15 question is whether their disqualification from voting amounts to an unjustified limit on the right to vote guaranteed by s 12 of NZBORA, and if so whether the Court should make a declaration to that effect. [131] For the reasons outlined above, we are of the same opinion as Heath J, and support the making of a declaration in the terms as he expressed them. 20 Declaration made. 25

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Wai 2472, Electoral (Disqualification of Sentenced Prisoners) Amendment Act Claim.

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Taylor v Attorney-General—Judgment 71

72 

5 Commentary on Brooker v Police Rights Balancing Rejected URSULA CHEER

The Supreme Court Judgment A Protest Brooker v Police1 was one of the first decisions of New Zealand’s superior courts where the Court attempted to grapple with the constitutional impact of freedom of expression, as embodied by s 14 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), on the interpretation of a minor public order offence.2 Mr Brooker protested outside the house of a female police officer, Ms Croft, because he believed she had abused police powers in relation to him. The protest took place at 9.20 am, and consisted of playing a guitar, singing in a normal voice and displaying a placard with messages such as ‘freedom from unreasonable search and seizure’. Mr Brooker was originally arrested for loitering with intent to intimidate,3 but the charge was substituted in the lower court with behaving in a disorderly manner.4 Mr Brooker was convicted and fined $300. He represented himself in the appeal to the Supreme Court. The split in the Supreme Court reflected the complexities presented by the case, which involved the interplay of a number of issues: whether Mr Brooker’s behaviour constituted the minor public order offence of behaving in a disorderly manner, whether that offence was intended to protect the privacy of individuals such as Ms Croft, and whether Mr B ­ rooker’s activities were a form of protest protected by the Bill of Rights freedom of expression ­provision5 and therefore not covered by the criminal offence at all. It is important to note that no rights in the Bill of Rights are absolute. Therefore it cannot be argued that freedom of expression is a right to publish or protest whatever harm this might cause to others. This is recognised in s 5 of the Act: [T]he rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 1 

Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91. eg, Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1 and Bright v Police [2009] NZCA 187, [2009] 3 NZLR 132 (trespass at council meetings). See also Hopkinson v Police [2004] 3 NZLR 704 (HC, flag burning). 3  Summary Offences Act 1981 (NZ), s 21(1)(d). 4  ibid, s 4(1)(a). 5  NZBORA 1990, s 14. 2  See,

74  Ursula Cheer This provision requires a balancing to take place in relation to the right or freedom under scrutiny whereby it can be limited if needed to prevent harm to others or to protect other rights. Furthermore, when interpreting any statutory provision that might limit a Bill of Rights freedom, such as the criminal offence of behaving in a disorderly manner (the Brooker offence), the courts have to, as far as possible, settle on a meaning which is ­‘consistent’ with the Bill of Rights freedoms.6 In Brooker, then, the Court attempted to resolve whether finding Mr Brooker was guilty of behaving in a disorderly manner would be inconsistent with his freedom to protest, and also whether it was necessary to find him guilty to protect Ms Croft’s privacy rights. The majority of Elias CJ and Blanchard and Tipping JJ allowed the appeal and set aside the conviction, largely because primacy was given to Mr Brooker’s freedom of expression. Two judges in the majority accorded considerable weight to privacy but did not find it engaged in this case. Elias CJ thought it was consistent with the right to freedom of expression that restrictions on it may be imposed where necessary to protect interests such as privacy or residential quiet, in accordance with New Zealand’s international obligations.7 However, in this case, she concluded that the offence of disorder was not designed for that end, but rather to preserve public order.8 Blanchard J noted that:9 [T]he common law has long recognised that men and women are entitled to feel secure in their homes, to enjoy residential tranquillity—an element of the right to privacy. They are justifiably entitled not to be subjected there to undue disturbance, anxiety or coercion.

Although he thought that privacy may be an important consideration in assessing whether the conduct of a defendant has disturbed public order,10 even allowing for the fact that Mr Brooker intended to wake the constable in a protest targeted at her, it was not a justified limitation of his right of freedom of expression to hold that such a protest, of short duration and during daylight hours, was proscribed by the criminal law.11 Tipping J carefully avoided any reference to privacy, and determined the matter as a clash between freedom of expression and a need to proscribe conduct in a public place which is disorderly because, as a matter of time, place and circumstance, it causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear.12 The minority of McGrath and Thomas JJ preferred to elevate a right to privacy in one’s home above any free speech rights being exercised by Mr Brooker. McGrath J applied a balancing process under s 5 of the Bill of Rights by treating privacy as of equal weight with freedom of expression even though it is not in the Bill of Rights, and even appeared prepared to extend the concept of privacy beyond publication of private information to interference with solitude.13 The policewoman in Brooker, Ms Croft, was disturbed while resting

6 

ibid, s 6.

7 International

Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) UNGA Res 2200A (XXI), arts 17 and 19. 8  Brooker v Police (n 1) [41]. 9  ibid [60]. 10 ibid. 11  ibid [69]. 12  ibid [90]. 13  Intrusion into seclusion has now been recognised as a tort in New Zealand in C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672.

Brooker v Police—Commentary 75 in her home, and McGrath J held that although she was a state official, she was entitled to a private life.14 He concluded that the interests of New Zealand citizens in being free from intrusion in their homes was a value close to being as compelling as freedom of speech15 and that the detriment to the policewoman’s privacy outweighed Mr Brooker’s free speech rights.16 Thomas J spent some time developing his theory of what Bills of Rights are for and suggested that they are dedicated charters with the capacity to be cohesive and harmonising agents within the community.17 He expressed the view that rights come with responsibilities and are to be exercised responsibly with concern and consideration for others.18 ­Further, the key value underlying the rights in the Bill of Rights is the dignity and worth of the human person.19 Although privacy was not in the Bill of Rights, Thomas J identified it as basic to human dignity.20 He therefore treated both freedom of expression and privacy as fundamental values.21 In examining freedom of expression, Thomas J did not give undue judicial deference to it as a theoretical concept, and saw the judiciary at risk of doing this. He made it clear that courts have to deal with the concrete application of the concept in particular situations.22 He also appealed to US law to argue that there is a very compelling right or interest in privacy in the home.23 Thomas J then carried out a form of balancing and concluded that Mr Brooker’s protest action did not merit the full protection of the law, because the: [F]abric of our democratic and civil society would lose nothing if the right to freedom of expression were required to give way to a reasonable recognition of privacy and the interest of being left alone in the seclusion of the home.24

Therefore, both dissenting judges would have allowed Mr Brooker’s conviction to stand.

A Failure of Legal Liberalism In Brooker, the Supreme Court clearly wanted to ensure that minor public order offences are interpreted in a manner that does not unduly limit the public interest rights of free speech and protest. The significance of the judgment is that it indicates judicial acceptance at the highest level that the Bill of Rights is relevant to minor public order offences which might impact on any of the rights contained in it. Unfortunately, the judgment established little certainty about the limits of peaceful protest and how this plays out in the context of competing privacy rights. However, it must be acknowledged that Brooker was not a classic protest case in which this tension could be easily resolved. As Geddis points out, the facts of

14  15 

Brooker (n 1) [122]. ibid [129].

16 ibid. 17 

ibid [171]. ibid [173]. 19  ibid [180]. 20  ibid [182]. 21  ibid [231]. 22  ibid [240]. 23  ibid [255]–[270]. 24  ibid [276]. 18 

76  Ursula Cheer the case were complex because difficult locational issues were engaged.25 Mr Brooker was in a residential area, early in the morning. Some of his statements, both oral and written, ­suggested his actions were focussed on the policewoman (Ms Croft) herself, and not on making a complaint against a state body with the intention that the public should know about it. Mr Brooker’s actions in singing and waiting outside the policewoman’s house were at a time and pitched at a level which would only reach her and no one else. What was the Court to make of this? Feminist commentators would say that by carrying out a classic liberal rights balancing, it made a hash of things. On this view, the right to freedom of expression as a more abstract protection against state power was preferred over one woman’s more narrowly-expressed claim in her own home to the right to privacy from the actions of one person. Ultimately (according to the majority judges) the latter gave way to the former. The primacy of legal protection went, as noted by some feminist scholars, to a right within the public, not the private, domain.26 In part this dominance of freedom of expression may be due to the nascent character of privacy, because doubts persist as to its very status as a right. Indeed, some of the discussion in Brooker centred on whether privacy is a right or a value. To get around this, Thomas J in the minority found that competing interests in the case were to be dealt with without labels (such as ‘rights’), but as equal fundamental values.27 This meant there could be no obstacle to balancing the two and privacy would not be disadvantaged at the outset. However, even if privacy had been accorded public rights status by all the Judges in the case, and hence weighed against freedom of expression as an equal right, a feminist perspective may anticipate that the outcome of the case would have been the same. This is because the discourse would be about abstract rights rather than the actual experience of the woman involved, with the content of the rights being furnished by the judges doing the balancing.28 Further, an entitlement to liberal rights does not guarantee the ability to exercise them when competing with other rights. Feminist commentators have argued that rights can only be balanced in a heavily contextual and subjective manner which may reflect the gender and biases of those engaging in the process.29 Hence, the outcome of rightsbalancing can appear arbitrary, and this was reflected in Brooker, which involved the closest possible decision: a majority of three and a minority of two. The decision therefore appears to substantiate the legal feminist view that women do not tend to benefit from liberal rights balancing.

25 

A Geddis, ‘Brooker v Police’ (2008) 8 Oxford University Commonwealth Law Journal 117, 125. eg, J Morgan, ‘Sexual Harassment and the Public/Private Dichotomy’ in M Thornton (ed), Public and ­Private: Feminist Legal Debates (Melbourne, Oxford University Press, 1995); GJ Simpson and H Charlesworth, ‘Objecting to Objectivity: The Radical Challenge to Legal Liberalism’ in R Hunter, R Ingleby and R Johnston (eds), Thinking About Law: Perspectives on the History, Philosophy and Sociology of Law (St Leonards, Allen & Unwin, 1995). 27  Brooker (n 1) [212], [231]–[232]. 28  See, eg, E Kingdom, What’s Wrong with Rights? Problems for Feminist Politics of Law (Edinburgh, Edinburgh University Press, 1992) 150–151. 29  Simpson and Charlesworth, ‘Objecting to Objectivity’ (n 26) 121–123. 26  See,

Brooker v Police—Commentary 77

The Feminist Judgment The Wrong Charge After acknowledging the difficulties of rights-balancing exercises, the feminist judge has deliberately chosen to avoid the weaknesses of rights discourse referred to above. Although McLean J makes it quite clear in her first paragraph that the case involves two important rights that have long been respected in the common law, the feminist judge chooses to highlight the gendered nature of the issues arising rather than seeing them through a liberal legal lens as an ordinary case of minor criminal activity resolvable by a neutral balancing of the various rights involved. She suggests a different interpretation of the facts than that taken by the District Court at the original hearing. The feminist judge argues that the substitution of the charge was wrong and that the facts suggest strongly that there was sufficient evidence to support an intention to intimidate as part and parcel of an assertion of control over the policewoman. McLean J details those facts and in the process highlights the actual experience of the person Fiona Crofts rather than that of a hypothetical experienced and well-trained constable who would be expected to be ‘tough’ in all circumstances. The judge reinforces this by consistently referring to ‘Ms Croft’ rather than ‘Constable Croft’. There is a focus throughout the judgment on the real woman involved rather than any abstract or suppositional analysis, reflecting the need to bring humanity to the decision-making process.30 The excellent point is made that the statements put in evidence to the court by the policewoman about her experience of the protest should be relied on, rather than any speculation about her state of mind or whether or not she ought to have been intimidated. This is supported by a powerful discussion of past, now discredited, judicial interpretation of forms of harassment in the context of relationships involving domestic violence, which tended to downplay and trivialise the concerns of potential victims—for example, by failure to acknowledge that the sending of a bunch of flowers was experienced as threatening rather than chivalrous.31 The feminist judge then goes on to advocate that the watching and loitering provision should be given an interpretation that addresses the lives of real women and pressing social needs. The feminist judge therefore suggests that privacy should have greater weight in the context of a loitering with intent offence. She argues Ms Croft should have been treated as acting in a private capacity and did not lose privacy rights just because she happened to be an officer of the state. Furthermore, Mr Brooker was not making a protest against the police, but against her as an individual. The judge determines that limiting free speech using this interpretation of s 21(1)(d) is reasonable in the circumstances, because Parliament has already undertaken a balancing task by criminalising expression intended to frighten or intimidate, a view also advanced by fellow female judge, Elias CJ. Because McLean J 30  See generally: R Graycar and J Morgan, The Hidden Gender of Law, 2nd edn (Leichhardt, Federation Press, 2002) 412–413. 31  R Busch, ‘Don’t Throw Bouquets at Me … (Judges) Will Say We’re in Love: An Analysis of New Zealand Judges’ Attitudes Towards Domestic Violence’ in J Stubbs (ed), Women, Male Violence and the Law (Sydney, ­Institute of Criminology, 1994) 104.

78  Ursula Cheer c­ oncludes Parliament has drawn the bright line, she is able neatly to sidestep any need to carry out a ‘highly subjective and wide ranging balancing test’ in relation to the loitering offence she suggests should have been prosecuted.32 She concludes that judges should determine only the existence of the required intention to frighten and intimidate, which will depend on the wider context, including matters such as how, when and where the acts took place. To summarise, the feminist judge suggests that the more serious criminal charge of loitering with intent should not have been substituted at trial for the less serious offence of behaving in a disorderly manner and the more serious charge should have been applied in a broad fashion so as not to restrict Ms Croft’s and women’s real-world experience of intimidation. Ultimately, however, the judgment concludes with regret by acknowledging that the proceedings cannot be reopened as to the nature of the charge which should have been brought. The feminist judge notes that if Mr Brooker repeats his behaviour, he might attract the more serious charge and she acknowledges the validity of Ms Croft’s experience at his hands. However, she goes on to agree with the majority that the charge of disorderly behaviour under s 4(1)(a) of the Summary Offences Act 1981, for which Mr Brooker was actually tried, cannot be made out because the provision is intended to regulate public places and Mr Brooker invaded the policewoman’s private space. She emphasises the illogicality of determining the matter by balancing privacy in the context of the criminal offence, because the existence of a privacy interest cannot transform an action that is not disorderly into one that is. McLean J also notes the failure of balancing tests to produce certainty and clarity in the law. Finally, before allowing the appeal, McLean J openly makes a plea for the law (and ­Parliament) to regulate harassment in a manner that takes account of the lives of women and children. Overall, the treatment is a clever sleight of hand, whereby, while agreeing with the majority, the feminist judge uses powerful obiter as a tool to expose the weaknesses of liberal legal discourse, and at the same time, suggests a better road which could have been taken, based on feminist legal theory.

32 

McLean J, this collection [305].

Brooker v Police

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Supreme Court of New Zealand SC 40/3005; [2007] NZSC 30 7 December 2005; 4 May 2007 Elias CJ, Blanchard, Tipping, McGrath, Thomas and McLean JJ

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McLEAN J.  [289]  This case involves two people who claim that their individual rights have been threatened. Mr Brooker feels a deep sense of injustice and wishes to protest against alleged harassment by the police; Ms Croft wants to feel safe in her home as she sleeps. Mr Brooker claims the right to protest; Ms Croft claims the right to privacy and home life. The first is explicitly protected by s 14 of the New Zealand Bill of Rights Act 1990; the second, by Article 17 of the International Covenant on Civil and Political Rights referred to in the preamble to the New Zealand Bill of Rights Act. Both rights are respected in the common law; neither of them is absolute. Conflicts between individual rights are notoriously difficult to assess and often invite judges to engage in subjective and nontransparent balancing exercises. Inevitably one person is likely to leave this court feeling as though their rights have been denied in favour of the other. I am reluctant to engage in a finely-tuned balancing exercise when a balancing exercise has already been undertaken by the legislature. I also see this case as raising some different issues from those raised before this Court. I am, however, limited to deciding the issues as they have presented themselves on appeal from previous courts. Ultimately, I am constrained in what I can decide by the way in which the arguments were presented to us.

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The facts [290] Fiona Croft is a police constable. In the course of her work she obtained a search warrant to undertake a forensic examination of a car believed to be on Mr Brooker’s property. The police attempted to execute the warrant late on a Saturday night (it is unclear from 35 the facts if Constable Croft was among them). They did not find the car on the premises. Mr Brooker believes that these actions on Constable Croft’s part were intended to harass him. He alleges that even if the car had been found, the forensic examination could not have been completed in time for the Monday court hearing. We are not in a position to determine Constable Croft’s intentions or whether her actions in fact constituted police 40 harassment. That is not the question asked of us in this hearing. The law takes police misconduct seriously and it provides a number of avenues by which Mr Brooker could pursue these allegations. He could take a complaint to the Police Complaints Authority, or challenge the lawfulness of the search warrant and seek Baigent damages.238 There are also a number of political channels available to him through which he could attract public 45

238

Simpson v Attorney-General (Baigent’s case) [1994] 3 NZLR 667 (CA).

80  Janet McLean a­ ttention to his cause—such as a complaint to his MP, letters to the editor, use of social media and the like. Indeed, shortly after the events at issue in this case he set up a protest outside Greymouth Police Station. The matter before us concerns Mr Brooker’s decision to target Ms Croft personally and to retaliate in kind. 5 [291] Greymouth is a small town. Mr Brooker worked out where Ms Croft lived. He also ascertained when she was on duty. He went to Ms Croft’s address at 9.20 am knowing that she had been on night shift. He knocked on the door to ensure she was at home. He continued knocking for an estimated three minutes until Ms Croft answered the door. Ms Croft took time to dress but we can safely assume that she was not in her uniform. When 10 she answered the door Mr Brooker said “you are on night shift and you do not like being woken up”. She told him to leave in strong terms (telling him to “piss off”). He walked to the grass verge on the road barely three metres from her house where he displayed a sign facing the road which said “No more bogus warrants”. He sang (in what was described by a police witness as “a normal singing voice”) accompanying himself by guitar. The songs 15 contained slogans such as “Safer communities together, Fiona”, “Freedom from unreasonable search and seizure”, “You just do not know when to quit—no more 3 am visits, Fiona” and “Too many bogus warrants, no more malicious prosecutions.” Ms Croft did not leave the house. Instead she phoned the police and 15 minutes later he was arrested. 20

The original charge [292] The original charge was made under s 21(1)(d) of the Summary Offences Act 1981 which provides: 21. Intimidation

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(1) Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other ­person reasonably to be frightened or intimidated— … (d) watches or loiters near the house or other place, or the approach to the house or other place, where that other person lives, or works, or carries on business, or happens to be; … [293] The Judge in the District Court at Greymouth did not think there were facts enough to support the contention that Mr Brooker intended to intimidate the complainant. He used s 43 of the Summary Proceedings Act 1957 to amend the charge to disorderly behaviour under s 4(1)(a) of the Summary Offences Act. He later convicted Mr Brooker of disorderly behaviour. The High Court and Court of Appeal upheld the conviction for disorderly behaviour for different reasons. Three of the judges in this Court, whose judgments I have read in draft, conclude that, read in light of the right of freedom of expression protected under the New Zealand Bill of Rights Act, Mr Brooker was not disorderly in the sense of disturbing the general public in a public place and hence would acquit him of disorderly behaviour. I concur with that result but add some comments of my own regarding the appropriate disposition of this matter. [294] In my view, the original charge of intimidation should not have been amended. The District Court Judge was too quick to rule as a matter of fact that Mr Brooker lacked the intention to intimidate or did not know that his conduct was likely to cause Ms Croft to be intimidated. A number of facts suggest the element of intention to intimidate was present. Mr Brooker’s actions were carefully planned and calculated. He had earlier been to her home when she was not there. He had ascertained when she would be off duty. His actions were calculated to exact a kind of personal revenge for the alleged harassment he himself

Brooker v Police—Judgment 81 had experienced. He was attempting to repay like with like. He singled out an individual, female constable as the object of the alleged wrongdoing by the police. He focused on when she was at her most vulnerable—asleep or on the verge of sleep or newly woken— just as he had been vulnerable when the warrant was executed against him at 3 am. He knocked at her door for three minutes—three minutes is the average length of a pop song or the time it takes to make a 1260-word speech. That indicates determination and persistence on his part and it only stopped when Ms Croft actually confronted him. His words on waking her, that “you do not like being woken up” (my emphasis), were apparently in reference to the occasion on which he himself had been woken from executing the search warrant. [295] Mr Brooker retreated to the verge when she told him to “piss off” but showed no intention of leaving her alone. He proceeded to sing in his normal singing voice and did not otherwise raise his voice. Mr Brooker showed some awareness of both the trespass laws and the disorderly behaviour laws and his actions demonstrated an intention to stay technically within the law. Together his actions could be seen as calculated to reverse the power imbalance he had experienced when Ms Croft had exercised authority over him in her official role as a police constable. His song lyrics were addressed to “Fiona”—not to Constable Croft. He was focussed on her as a woman and not as a police constable. Ms Croft was no longer at work, in uniform, or acting as constable but was in her most private space on the verge of sleep, asleep or just woken. The message was “I know where you live”. Mr Brooker was asserting his control over Ms Croft. His actions could properly be seen as part and parcel of a message which was intimidating in intent. [296] No doubt in her working life Ms Croft is an experienced, tough and well-trained police constable. But in this instance, given these circumstances, Ms Croft reacted the same way in which most women would. She reported that she was “shocked to see him”, that “she did not want him at her address” and that “his mere presence on my address was intimidating”. She stayed indoors and chose not to confront him outside for fear that that would provoke him. She immediately rang the police. I mention Ms Croft’s reactions in order to acknowledge how she actually reported her concerns. The initial more serious charge was much closer to how she experienced Mr Brooker’s actions than the later charge of disorderly behaviour. Unlike Blanchard J, I do not think it is the proper role of this Court to speculate about her state of mind and whether she was more angry than intimidated, or indeed whether she ought to have been intimidated. [297] In any event the legal test in s 21(1)(d) does not ask this Court to determine what the effects of the actions were on Ms Croft but rather whether Mr Brooker could be considered to have formed an intention to intimidate or to know that his actions were likely to intimidate. [298] In the past, judges have been too quick to treat as not intentionally intimidating actions which may in “ordinary” circumstances appear to be innocent. We know from the field of domestic violence that judges have, for example, sometimes mistakenly viewed gestures such as delivering flowers to the back door of an estranged partner’s new address in breach of a domestic protection order as “romantic”, rather as Blanchard J describes Mr Brooker’s song as a “serenade”. We know, however, that a covert threat is intended by such actions and that women experience such conduct as a threat and as a form of psychological abuse.239 The primary message that the estranged partner is intending to send is that “I know where you live and I could find you at any time”. 239

Ruth Busch, ‘Don’t Throw Bouquets at Me … (Judges) Will Say We’re in Love: An Analysis of New Zealand Judges’ Attitudes Towards Domestic Violence’ in Julie Stubbs (ed), Women, Male Violence and the Law (Sydney, Institute of Criminology, 1994) 104; Linda Mills, ‘Killing her Softly: Intimate Abuse and the Violence of State Intervention’ (1999–2000) 113 Harvard Law Review 551.

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82  Janet McLean

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[299] The parallels between Mr Brooker’s actions and the kinds of harassment commonly employed in relationships involving domestic violence do not end there. Another element of the s 21(1)(d) offence is whether Mr Brooker was watching or loitering near the house. Section 21(1)(d) is almost identical to the wording of the standard conditions of a P ­ rotection Order under s 19(2)(a) of the Domestic Violence Act 1995 which aims to prevent the person to whom the order is addressed from “watch[ing] or loiter[ing] near, or prevent[ing] or hinder[ing] access to or from a place of residence …”. The intention of both sections is to secure people in their homes and other places from intimidation and harassment. [300] The Chief Justice hints at a difficulty in construing “watch or loiter” to include Mr Brooker’s actions. We might read loiter as referring to a more passive activity than the singing of songs and displaying a placard. The Cambridge Dictionary definition of loiter is to “move s​ lowly around or s​ tand in a ​public ​place without an ​obvious ​reason”, or according to the Oxford Dictionary, “to linger on the way, hang about”. His “hanging about” was not without apparent purpose. [301] We should be careful, however, not to give the words “loiter” or “watch” a meaning which precludes apparently purposive activity of the kind in which Mr Brooker was engaged. The words ought to be read in light of the rights-affirming purpose of s 21(1)(d) to secure people in their homes and private life. Accordingly, “loiter” should be given an expansive reading when the conduct is targeted at a residential address rather than some of the other places listed in the section. Too restrictive a reading of such a section may create difficulties in the pressing context of enforcing Protection Orders. [302] There may also be an issue about whether Mr Brooker watched or loitered long enough to invoke the intervention of the criminal law. His immediate actions were stopped by the arrival of the police after approximately 15 minutes (though we do not know how long he was at the house before he knocked on the door). It would be perverse if police had to delay their response to distressed members of the public in order to be able to charge people under the section. The whole circumstances of the case need to be taken into account. The law ought to, where possible, be read to fit the circumstances of real people’s lives and in a way that is able to address pressing social needs.

Reasonable limits on privacy rights [303] Section 21(1)(d) is a rights-protecting provision. Its purpose (in contrast to the purpose of s 4(1)(a)) is to protect privacy and the ultimate right to be safe in one’s person. In s 21 Parliament has attempted to give effect to New Zealand’s undertakings to secure a 35 person’s privacy and home life guaranteed in art 14 of the International Covenant. Rights and liberties were not invented in 1990 with the enactment of the New Zealand Bill of Rights Act. The common law has long recognised that the “Englishman’s home is his castle”. It has taken longer for common law judges to acknowledge that that premise does not ­necessarily offer equal security for women and children in their homes but we should 40 not miss an opportunity to develop the law in a way which treats everyone with equal concern and respect. Section 28 of the New Zealand Bill of Rights Act explicitly recognises that existing rights are neither abrogated nor restricted by their non-inclusion in the Bill of Rights and the preamble affirms New Zealand’s undertakings in the International Covenant. 45 [304] It is too easy to refer to Ms Croft as a constable (as Blanchard and McGrath JJ do) and hence to imagine her as an agent of the state which itself is unable to enjoy constitutionally protected rights. Rights are held by individuals against the state and not by the state itself. But in the case at hand she was off duty, she was in her private home, she was literally out of uniform and was engaged in the intimate act of sleeping or trying to sleep.

Brooker v Police—Judgment 83 Mr Brooker’s songs referred to her as “Fiona” and not as Constable Croft. She is not a public figure or politician, nor is she someone who has sought celebrity. Ms Croft did not relinquish her rights to a private life when she became a police officer. [305] How should we read s 21 in light of the guarantee of freedom of expression in s 14 of the New Zealand Bill of Rights Act? In securing a person’s privacy and home life, s 21(1)(d) limits a range of other rights such as freedom of movement, association and expression. Taken as a whole, the statutory requirements of “intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated” establish reasonable limits on the rights of free movement, association and expression. Such reasonable limits on rights prescribed by law in a free and democratic society are contemplated by s 5 of the New Zealand Bill of Rights Act. In setting out the requirements for the application of s 21(1)(d), Parliament has made a judgement that freedom of expression must yield to privacy interests when the form and manner of expression is intended to frighten or intimidate a particular person. The balancing task has already been undertaken by Parliament and a bright line has been drawn between protected freedom of expression and freedom of expression which must yield to other rights and interests. Such a reading of s 21(1)(d) avoids the need for the application by the judges of a highly subjective and wide-ranging balancing test. The judge’s role is to determine whether there was an intention to frighten and intimidate, or whether the person knew that his or her conduct was likely to cause the other person reasonably to be frightened or intimidated. [306] I agree with Elias CJ that the balancing test mandated by s 5 is primarily one for Parliament—at least in a criminal law case of this kind. Like her, I am of the view that the criminal law needs to be certain and predictable. The police and citizens need to know in advance what is expected of them. Bright-line rules are necessary and appropriate in such settings. Judges ought not in these kinds of areas engage in some kind of residual balancing of freedom of speech interests after the fact and after the luxury of appellate legal argument. Our role is to support citizens and police at the point at which decisions are made about whether a charge should be laid and what kind of charge is appropriate. [307] We could expect, however, that the offence in s 21(1)(d) would be much harder to make out in this particular case if the place being watched had not been her private residence, but instead had been Ms Croft’s place of employment, which in her case was the local police station. Again, the application of the test will be very fact-dependent. The wider context of where and how the actions take place will help inform the question of whether the acts were in fact intended to intimidate. Intimidation need not require repeated actions; it will depend on their duration, intensity and context.

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The charge at hand [308] We have not heard argument on these points and it is not open to me to make a finding that Mr Brooker was in breach of s 21(1)(d). I write at such length on this issue because 40 I am concerned about the District Court Judge’s comments about the problem of finding an intention to intimidate and the hint in Elias CJ’s judgment that loitering would have been difficult to establish. An overly restricted reading of the section risks diminishing women’s experience of and protection from intimidation. [309] Unfortunately for Ms Croft I am unable in this proceeding to reopen the question of 45 what charge ought to have been brought as this would expose Mr Brooker to double jeopardy. In my view the more serious charge should not have been substituted by the lesser charge of disorderly behaviour. Mr Brooker should be aware that if his behaviour towards Ms Croft were to be repeated he may be at risk of a more serious charge. I realise this is unlikely to be of any immediate comfort to Ms Croft. It is important, however, that in this

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proceeding the Court acknowledges the validity of her concerns that Mr Brooker’s “mere presence on my address was intimidating”. [310] The District Court Judge substituted the original harassment charge for the lesser charge of disorderly behaviour. With the majority of this Court I do not consider that Mr Brooker’s behaviour was sufficiently disruptive of public order to meet the standard required by s 4 of the Summary Offences Act. I am persuaded by Elias CJ’s discussion of the history and purpose of the provisions regulating disorderly behaviour in the Summary Offences Act. The offences in ss 3 and 4 have been designed by Parliament to regulate access to public places. I agree with Blanchard J that the test for disorder under s 4(1)(a) ought to be whether behaviour in or within view of a public place substantially disturbs the normal functioning of life in the environs of that place. [311] I also reluctantly disagree with McGrath J’s judgment which, like Thomas J’s and the Court of Appeal’s, sought to accommodate Ms Croft’s privacy interest by way of a balancing test against freedom of expression. The existence of a privacy interest cannot make action that was not disorderly into action that was disorderly. For the reasons already given, the content of criminal offences must be known and accessible. It is not appropriate or desirable if they can only be determined after finely balanced legal argument. I cannot share McGrath J’s view that s 4 can be satisfied if the conduct is visible from a public place, even if the disruption or harmful impact is felt exclusively by a single person who is on private premises. Such a reading would be too intrusive of freedom of expression. Mr Brooker’s actions were focused on Ms Croft personally and affected her enjoyment of her private space. The “protest” was all about her, and did not disturb access to or use of a public place. Members of the public could not hear his words. They were not amplified. The drop-off period for the local primary school children across the road had ended and the children would have been in class. [312] Thomas J himself warns about the difficulties of achieving structure, judicial discipline and intellectual rigour when applying a balancing test and the problems associated with different judges reaching different conclusions after applying similar tests. If vulnerable people are to be protected, we need clear tests stated in advance and consistently applied. [313] It is not the purpose of s 4(1)(a) to regulate a situation like this and neither is it desirable to develop the law of protest through this type of case. If s 21(1)(d) does not meet the demands of this kind of situation, Parliament should fashion a more tailor-made provision to regulate acts of harassment like these to take particular account of the reality of the lives of many women and children. I would allow the appeal and quash the conviction. Appeal allowed.

Social Welfare

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Commentary on Ruka v Department of Social Welfare Defining a Relationship for the Purposes of State Support CATRIONA MacLENNAN

The Court of Appeal’s Decision This case tells a personal story of one woman’s survival in conditions of devastating trauma. Isabella Ruka was viciously and repeatedly beaten and raped during the course of the 17 years she spent with the man named in the original decision as ‘Mr T’. She bore a child to him, but the abuse continued and Mr T provided no financial support either to Ms Ruka or to their child. He did not undertake domestic duties and played virtually no part in caring for their child. Ms Ruka worked to support herself and her child, but also at times received a domestic purposes benefit, including a number of times when Mr T was residing in the same house as her. A person is not eligible for that benefit while living in a ‘relationship in the nature of marriage’.1 Ms Ruka was consequently prosecuted on seven charges of wilfully omitting to supply material particulars under s 127 of the Social Security Act 1964 (NZ) and six charges of fraudulently using a document to obtain a pecuniary advantage under s 229A of the Crimes Act 1961 (NZ). She was convicted on all counts. Her appeal to the High Court was unsuccessful. On appeal in 1996 against conviction to the Court of Appeal, the issues for consideration were whether a relationship utterly lacking in financial and emotional commitment comprised a relationship in the nature of marriage, and whether the impact of ‘battered woman’s syndrome’ could be taken into account in defining the nature of the relationship. The Auckland Women Lawyers’ Association (AWLA) was granted amicus curiae status to appear and present submissions at the Court of Appeal hearing, as the case raised issues of considerable importance to women. AWLA’s submissions set out what really happened to Ms Ruka and discussed the international human rights issues underlying the proceedings. The submissions then identified the rights at issue, and examined violence against women and the policies behind the social security legislation. 1 

Social Security Act 1964 (NZ), s 63(b).

Mana Wahine

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88  Catriona MacLennan

Mana Wahine

AWLA submitted that the Social Security Act and the Crimes Act could not be interpreted as contrary to international human rights instruments which New Zealand had adopted or ratified,2 unless there was a plain positive indication to the contrary. The facts of the case disclosed that Ms Ruka’s most fundamental human rights had been violated. She had been subjected to violence because she was a woman. Her sexual relationship was one of victim to rapist, not one of wife and husband. The submission said that the relationship between Ms Ruka and her partner was not a ‘relationship in the nature of marriage’ for the purposes of the Social Security Act as, critically, financial interdependence and mental commitment were lacking. The existence of battered woman’s syndrome meant that Ms Ruka was not free to leave the relationship. AWLA argued that Ms Ruka had no choice other than to do what she did. She had been relentlessly and violently abused for at least 16 years. She was unable to get away from Mr T and she needed to provide a safe place for her child. She needed income to support herself and her son, and Mr T provided her with none, in fact he regularly took what little money she had. As a citizen of New Zealand—a country which had ratified the United Nations Convention on the Elimination of All Forms of Discrimination Against Women3 and the Convention on the Rights of the Child4—she had a legitimate expectation that, in the dire circumstances in which she found herself, she would be provided with social security. AWLA also submitted that the common law defence of necessity should be available. The Court of Appeal held that the statutory context was of great importance in determining the nature of a relationship in the nature of marriage. Although checklists could assist, it was important to consider the purpose of the social welfare legislation.5 The majority concluded that a relationship in the nature of marriage for the purposes of the Social Security Act was one in which an essential element was an acceptance by one partner that he (to take the stereotypical role) would support the other partner and any child if her income was inadequate. That financial support must be accompanied by sufficient features evidencing a continuing emotional commitment.6 As a consequence of finding there was no such relationship at the relevant times, the convictions were quashed. The judgment did not, however, acknowledge Ms Ruka’s status as tangata whenua or record her iwi or hapū identity. Neither did it include any analysis of Ms Ruka’s situation as a Māori woman raising a Māori child, or the legal or policy implications of this critical factor. It did not discuss relevant cultural factors, the importance of a collective as opposed to an individual viewpoint in Māori tikanga, or the influence of Ms Ruka’s whānau on her

2 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III), International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, International Covenant on Economic, Social & Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) UNGA Res 2200A (XXI), Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) UNGA Res 34/180, ­Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res 44/25, ­Declaration on the Elimination of Violence Against Women (adopted 20 December 1993) UN A/Res/48/104, B ­ eijing Declaration and Platform of Action (adopted by the Fourth World Conference on Women, 27 October 1995) endorsed by UNGA Res 50/203. 3  CEDAW (n 2). 4  Convention on the Rights of the Child (n 2). 5  Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA), 155. 6  ibid 155.

actions and decisions. The judgment also did not address the welfare of Ms Ruka’s child, or Aotearoa’s obligations under the Convention on the Rights of the Child. Following the Court of Appeal’s judgment, the then-Government proposed to amend the law to overturn the decision. However, the 1999 general election intervened, and the Government lost office.

The Social and Political Context Aotearoa won international praise for its ground-breaking legislation creating the welfare state—the Social Security Act 1938, which is perhaps the greatest political achievement in the country’s history. The philosophy of the legislation was that all citizens had the right to a reasonable standard of living, and the community collectively was responsible for supporting those who could not support themselves. The new regime was described in shorthand as ‘cradle to the grave’ protection for all citizens.7 However, that philosophy of collective responsibility was later undermined by emerging beliefs in individual success, conspicuous consumption and the view that no amount of wealth was ever enough. As the notion of collective responsibility frayed, the poor, sick and others who could not support themselves came to be looked down on and blamed for their misfortunes.8 Aotearoa developed a culture of beneficiary bashing, with people in receipt of benefits being described as ‘dole bludgers’, lazy, and shirking work. Governments reinforced this culture by frequent publicity about the numbers of beneficiaries convicted of benefit fraud. The epitome of the Ministry of Social Development’s suspicious approach to beneficiaries was the introduction of performance pay based entirely on the amount of fraud benefit crime investigators could detect, and the creation of the ‘Million Dollar Club’ to reward employees who detected at least a million dollars of fraud a year.9 The long title of the 1938 Act had identified that the legislation was intended to­ ‘safeguard’ citizens from life’s misfortunes. However, amendments were made to the law over time to downgrade collective obligations and instead emphasise individual responsibility, the need to obtain paid work, and a requirement for people to use their own financial resources to support themselves. Far less negative and judgemental attention has been devoted to (overwhelmingly male) tax evaders, white collar criminals, those who did not pay fines or reparation, and finance company fraudsters, despite that fact that the losses from these activities totalled billions of dollars, compared with the estimated annual $30 million cost of benefit fraud.10

7  New Zealand History, ‘Social Security Act passed’ (Ministry for Culture and Heritage) nzhistory.govt.nz/ social-security-act-passed. 8 www.nbr.co.nz/politics/orewa-2-text-speech-don-brash. 9  F Joychild, ‘Review of Department of Work and Income Implementation of the Court of Appeal Decision Ruka v Department of Social Welfare [1997] I NZLR 154’ (Wellington, Ministry of Social Development, 2001) 58: www. msd.govt.nz/documents/about-msd-and-our-work/publications-resources/archive/2002-rukareport.pdf. 10 www.msd.govt.nz/about-msd-and-our-work/publications-resources/statistics/fraud-prosecutions/index. html.

Mana Wahine

Ruka v Department of Social Welfare—Commentary 89

90  Catriona MacLennan

Mana Wahine

In relation to mothers receiving a domestic purposes benefit,11 the culture of beneficiary bashing was overlaid with sexism, so that solo mothers became the most despised group of beneficiaries. They were widely depicted as deliberately having children to obtain benefits, being bad mothers and spending their benefits on cigarettes, alcohol and drugs.12 In addition to punitive attitudes towards beneficiaries and sexism, a further strand providing the backdrop to Ruka was domestic violence. Although domestic violence has been perpetrated by men against women in every country in the world for thousands of years, it was only in very recent years that it came to be regarded as a major issue for communities and nations. At the time of this case, common attitudes towards domestic violence in Aotearoa were ‘it’s just a domestic,’ ‘it takes two to tango,’ and the belief that the victim must have provoked the male violence. A further foundation to the judgment was racism. Māori in Aotearoa suffer severe and disproportionate economic deprivation, but are stereotyped simultaneously as enjoying race-based privilege while also ‘bludging’ off taxpayers by receiving benefits.13

Failure to Implement the Decision and Ongoing Injustice The Ruka decision also reveals problems in the administration of welfare and welfare law. Concerns about the Ministry of Social Development’s apparent failure to implement the Court of Appeal decision within policy guidelines led the new Associate Minister for Social Services to commission a review of the Ministry’s response. The 2001 report by Barrister Frances Joychild found major shortcomings so acute that it recommended up to 15,600 cases be reviewed to ensure the correct legal test had been applied.14 While the guidelines now reflect the law as stated in Ruka accurately, the Ministry has continued to emphasise the importance of detecting benefit fraud and seeking repayment of the amounts obtained. Even when domestic violence is disclosed by those on benefits, this fraud and repayment focus continues; leading to shortcomings in the Ministry’s response. By 2005, research into the Ministry of Social Development’s response to the Joychild Report found that at least a further $60 million of wrongly-established debt remained, and was still being recovered from the poorest people in Aotearoa.15 There was a real possibility that beneficiaries living in violent relationships were not receiving the benefits to which they were legally entitled.16 In addition, many were paying back debts that should

11  Section 27B of the Social Security Act 1984 (NZ), now replaced by a ‘Sole Parent Support Payment’ under s 20F of the Social Security Act 1984. A social welfare payment primarily made out to single parents with dependent children. 12  See, eg, C Todd, ‘Social Stigma Makes Parenting Alone That Much Harder’ New Zealand Herald (Auckland, 14 August 2008) www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10526901. 13  See, eg, New Zealand National Party, ‘Nationhood—An Address by Don Brash Leader of the National Party to the Orewa Rotary Club on 27 January 2004’, www.scoop.co.nz/stories/PA0401/S00220.htm. 14  Joychild, ‘Review’ (n 10). 15  T McIvor, ‘The Ruka Review: How a Government Department Ignored the Law, and its Reluctance to Put Things Right’ (Wellington People’s Centre, 2005) www.scoop.co.nz/stories/PO0510/S00182.htm. 16  Z Shaw, ‘Domestic Violence and Relationships in the Nature of Marriage’ (Victoria University of Wellington, Unpublished Honours Dissertation, 2006).

never have been established against them. Such issues remain relevant. In October 2014, a ­Community Law study pointed to the severe difficulties encountered by beneficiaries seeking to obtain the financial assistance to which they were legally entitled.17 Requiring mothers convicted of benefit fraud to repay the full amount of the debts assessed against them means that they have a financial millstone around their necks for the rest of their lives. Seeking full repayment also means that beneficiaries are treated more harshly than others in the legal system. In Ruka, Richardson P and Blanchard J observed that the reparation order made in the District Court requiring Ms Ruka to repay $44,759.93 was ‘inappropriate’.18 Their Honours said that, where there was no realistic prospect of payment being made within a very few years, an order should not be made, at least for the full amount sought. That observation has been disregarded both by successive governments and by the ­Ministry of Social Development. Further, s 86 of the Act which conferred discretion on the Chief Executive of the Ministry of Social Development not to recover debts was amended in 2014 to tighten the requirement for recovery, and impose a duty on the Ministry to seek recovery, making recovery the norm.19 Sadly, there are ongoing problems with assessment of eligibility for a domestic purposes benefit, and the Ministry continues to both prosecute and seek repayment of the full debts from some beneficiaries, despite the negative consequences of this approach for children.20 In addition to the failed policy response to Ruka, it seems that judicial reluctance to take into account domestic violence persists. In 2014 a Balclutha woman was convicted of $132,308.43 benefit fraud, after being found guilty of being in a relationship in the nature of marriage at the same time as receiving a domestic purposes benefit.21 She was sentenced to two years’ jail and ordered to pay reparation of the full amount. The woman’s lawyer submitted she had been in a violent relationship and had asked her husband to leave. The Ministry of Social Development prosecutor told the court that the disclosure of a violent relationship at sentencing was not credible, and there was a lack of evidence about the abuse, apart from written submissions by the woman’s children. Judge Cook stated that there was ‘nothing objectively that would support that you were in [a violent] ­relationship’.22 ­Similarly, Child Poverty Action Group has publicised a case study of a woman who suffered violence and abuse and whose son was killed by her partner. The woman was prosecuted and convicted of benefit fraud and, after serving a jail sentence, has spent 15 years seeking to overturn her convictions and have a debt of more than $117,000 quashed.23

17  K Morton et al, Access to Justice for Beneficiaries: A Community Law Response (Canterbury, Community Law, 2014) www.bas.org.nz/wp-content/uploads/2015/03/Access-to-Justice-online-edition-11-Dec.pdf. 18  Ruka (n 5) 157. 19 Section 86(1) as amended by Social Security (Fraud Measures and Debt Recovery) Amendment Act 2014 (NZ). 20 S St John et al, ‘The Complexities of ‘Relationship’ in The Welfare System and the Consequences for Children’ (Child Poverty Action Group, 2014) www.cpag.org.nz/assets/141204CPAG%20Welfare%20System%20 final.pdf. 21 ‘Jailed for 2 years for $130k benefit fraud,’ Otago Daily Times (16 August 2014) www.odt.co.nz/regions/ south-otago/jailed-2-years-130k-benefit-fraud. 22 ibid. 23  C MacLennan, Kathryn’s Story—How the Government Spent Well Over $100,000 and 15 Years Pursuing a Chronically-ill Beneficiary Mother for a Debt She Should Not Have (Child Poverty Action Group, 2016) www. cpag.org.nz/assets/Publications/3-0%20Kathryn’s%20Story-web.pdf.

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Ruka v Department of Social Welfare—Commentary 91

92  Catriona MacLennan

Mana Wahine

A clear contrast with this harsh treatment of beneficiaries is provided by the 2015 s­ entencing of Patrick John Renshaw on 42 charges of tax fraud relating to almost $347,000. Mr Renshaw, a solicitor, was in 1992 sentenced to seven years’ jail on 42 charges of fraud and theft involving $6.4 million. However, at his sentencing on the 2015 charges, Judge Hobbs said it would not be principled to increase Mr Renshaw’s sentence on the latest charges for offending so long ago. Mr Renshaw was sentenced to 10 months’ home detention and ordered to pay reparation of only $13,000.24 At time of writing, social security legislation is undergoing amendment to write into law the Government’s ‘investment’ approach to social security. The Social Security Legislation Rewrite Bill refers to the risk of ‘long-term welfare dependency’, places qualifications on support for those in hardship, and emphasises the need for people to obtain paid work.25 The Bill does not describe the reduction of poverty as a key aim of social security or mention the welfare and best interests of children.

The Mana Wahine Judgment Stephens J recognises Ms Ruka’s mana by addressing her directly at the start of the judgment. Ms Ruka’s status as tangata whenua is recognised by the use of te reo in the opening words of the judgment, and by the inclusion of a Māori proverb at the end of the first paragraph. The reimagined judgment also recognises that the courts are dealing with human beings when making decisions: judgments are not about legal principles, but about people. The feminist judge accordingly expresses the wish in the opening paragraph of the judgment that Ms Ruka’s circumstances have changed and that she will in future enjoy a positive life. This statement affirms Stephens J’s approach to humanise and normalise Ms Ruka’s identity specifically as a Māori woman, in accordance with a mana wahine-based approach.26 Ms Ruka’s experiences traversed problems of poverty, violence and family dysfunction. An approach based on mana wahine should affirm her identity as a Māori woman while also accounting for her other struggles. Upholding Ms Ruka’s mana as a wahine also means including less detail about the violence and abuse she suffered. Such information was available in other documentation and judgments, there was no need to repeat such material in this judgment. It is for that reason that the feminist judge deliberately chooses to de-emphasise the violence. For the feminist judge, detailing the rapes and degradation ­suffered by Ms Ruka would undermine her identity and agency as a person beyond what she suffered. While her personhood is upheld, the man who caused her abuse and suffering is referred to only as ‘T’, in comparison to the original decision which refers to him as ‘Mr T’.

24  ‘Disgraced Former Lower Hutt Lawyer Sentenced for $347,000 Tax Fraud,’ Stuff (14 October 2015) www. stuff.co.nz/business/money/72994409/disgraced-former-lower-hutt-lawyer-sentenced-for-347000-tax-fraud. 25  As at April 2017 the Social Security Legislation Rewrite Bill is due to have its second reading (No 122-2, 2016) www.legislation.govt.nz/bill/government/2016/0122/18.0/DLM6783115.html. 26  Leonie Pihama, ‘Tihei Mauriora Honouring our Voices—Mana Wahine as a Kaupapa Māori Theoretical Framework’ (Unpublished PhD Thesis, University of Auckland, 2001) 236.

Stephens J notes that s 63(b) cannot be read down in such a way as to defeat the core object of the Social Security Act, which is to provide financial assistance to those who are unable to support themselves. The phrase ‘relationship in the nature of marriage’ must accordingly be given the fullest and most comprehensive construction. In carrying out that construction, Stephens J agrees with Gault and Henry JJ’s recognition that custom may be one way to identify a relationship which does not have the recognition of the Marriage Act 1955, but which requires recognition pursuant to s 63(b). The feminist judge then explains customary Māori marriage, stating that the extent of family or whānau, hapū or iwi sanction of that relationship is of great importance in determining the existence of such a marriage. Crucially, the feminist judgment explains that the basis of support for individuals in Māori marriages has not been the resources created within the context of the relationship, but the whānau and hapū from which the parties to the relationship came. The existence or dissolution of such relationships has often been the subject of collective—rather than individual—decision-making. While there was insufficient argument made, or evidence heard to determine the existence of a customary marriage the feminist judge leaves open the possibility for such an analysis to have been relevant. The court transcript showed that Ms Ruka’s father may have been an important factor in her deciding to apply for a benefit, and there was a possibility that her whānau was integral to determining whether her relationship was a customarilydetermined relationship. There were customary precedents for the formalisation of divorce on the basis that violence and harm were perpetrated upon the whānau—rather than solely on individuals—and that divorce would restore equilibrium. This openness to upholding the role of Māori custom and collective responsibility again reflects an approach based on mana wahine and recognises Ms Ruka’s right to practice her own culture, had that argument been pursued further before the court.27 The feminist judge emphasises that emotional commitment and financial interdependence are not the only factors to be considered. Applying customary Māori concepts of marriage would potentially allow a different result from that reached in the District and High Courts, and could have allowed for recognition of mana wahine.

27 

As protected under NZBORA, s 20.

Mana Wahine

Ruka v Department of Social Welfare—Commentary 93

Mana Wahine

5

Ruka v Department of Social Welfare

10 Court of Appeal  Wellington 3 July; 1 October 1996 Richardson P, Blanchard, Henry, Gault, Stephens and Thomas JJ STEPHENS J. Ka mihi kau ake ki aku Hoa, nga Kaiwhakawa Matua o tenei Kooti Pira. I respectfully acknowledge the learned judges of this Court. My learned friends have recounted in some considerable detail the extraordinary extent of the abuse Ms Ruka experienced between 1974 or 1975 and 1992. I need not revisit those accounts in detail; but I hope that Ms Ruka will now have the opportunity to 20 lead a very different kind of life to that which led her here before us. 15

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Kia hora te marino Kia whakapapa pounamu te moana Kia tere te karohirohi Let the calm be widespread, let the ocean lie flat, may it shimmer.

The legal nature of the relationship within which Ms Ruka experienced such trauma, and the extent to which the tests for determining the nature of that relationship are correct, 30 form the basis of my judgment. Ms Ruka was convicted under seven charges of wilfully omitting to provide relevant information to the Department of Social Welfare under s 127 of the Social Security Act 1964 (the Act), and six charges of fraudulently using a document to obtain a pecuniary advantage (s 229A of the Crimes Act 1961). The basis of those charges was that she was 35 ineligible for the domestic purposes benefit as she was living in a relationship in the nature of marriage and had failed to appropriately inform the Department of Social Welfare. Such omissions were held to be in breach of her statutory duty under s 12 of the Act to provide all relevant information to the Department of Social Welfare. Ms Ruka unsuccessfully appealed those convictions to the High Court, and has now appealed to this Court. 40 Facts At some times during the course of the 18-year period during which the man whom I will refer to as “T” and Ms Ruka cohabited she earned income by way of salary or wages. At other times she had no source of income. During those periods of little or no income Ms 45 Ruka applied for, and received, a number of social security benefits including a domestic purposes benefit under s 27B of the Act. It has been accepted as a matter of fact before this Court, and in the courts below, that T did not provide any financial assistance or support. He did not pay any household expenses. He did not pay schooling or clothing costs for his son. He did not pay for household resources. The only time he appears to have spent any 50 money, other than directly on his own wants and needs, appears to have been a few dollars

here and there for outings with his son; certainly nothing comprising any kind of appropriate financial contribution to the household. The evidence also revealed that T invested little or no time in demonstrating any degree of positive emotional commitment to the relationship with Ms Ruka, after the first year or so. Indeed the very opposite is true. His lack of commitment to the emotional wellbeing of 5 Ms Ruka and to their child is clearly demonstrated by the terrible physical and sexual abuse he meted out on a daily basis for years and years. The abuse perpetrated against Ms Ruka will have had a highly detrimental effect on their child. Despite T’s ongoing presence in the house, including staying in the same room as Ms Ruka, he demonstrated no appreciable commitment to their relationship, other than 10 maintaining what appears to have been a malign and controlling presence because it suited him to do so. When it suited him differently he turned his attentions to other women and, in pursuit of such, finally moved out of the shared residence in 1992. We have no further information about T’s wishes and desires; he was not called as a witness and may yet face charges relating to the matters that these proceedings have exposed. 15 Legal issue At the times when Ms Ruka applied for social assistance by way of a domestic purposes benefit, she did not inform the Department of Social Welfare that T was living at the same premises. The Department of Social Welfare determined that Ms Ruka was living with T in a relationship in the nature of marriage under s 63(b) of the Act, and thus ineli- 20 gible for the benefit. Her position is that she was not, at the material times, in a relationship in the nature of marriage. It is to that issue I now turn. Applicable law 25 New Zealand social security law has long reflected the notion that benefit applicants ought not be able to both pool resources with other employed adults and receive social assistance by way of targeted solo parent benefits. As a consequence, the nature of relationships between beneficiaries and other adults has been the subject of administrative inquiry at the time of determining and reviewing eligibility for benefit. As with other 30 beneficiaries, applicants for domestic purposes benefits are subject to the duty set out in s 12 of the Act: 12. Investigation of claims and grant of benefits—Every claim for a benefit shall be investigated by the Director-General or by an officer of the Department acting with the authority of the Director-General, and all benefits shall (subject to any delega- 35 tion of the Director-General’s powers under section 10 of this Act) be granted by the Director-General. The nature of the primary inquiry in the case of applicants for domestic purposes benefits is for such applicants to be asked to confirm if they receive financial support from 40 another adult in the house. This approach can be seen in the relevant eligibility sections in the legislation. Under s 27B(1)(a) of the Act, a definition section, the following people can be defined as an applicant, subject to certain conditions: 45 A woman who is the mother of one or more dependent children and who is living apart from, and has lost the support of, or is being inadequately maintained by, her husband … Under s 27B(2) such applicants will be eligible provided they meet age and residential requirements, and are caring for at least one dependent child. Such applicants will then be 50

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Mana Wahine

eligible, provided “the applicant is not living together with his or her spouse or partner or with the other parent of the child, as the case may be”. To determine what “living apart” and “not living together” for the purposes of s 27B(1) and (2) require, inevitably s 63 is referred to; as it provides a clear, if complex, scheme for 5 determining the nature of domestic relationships. It enables decision-makers both to see behind the veil of a legal marriage to determine if a couple is truly living apart, as well as to interpret the signs of a de facto relationship to determine if the equivalent of a marriage exists. The former will allow eligibility, and the latter renders applicants ineligible for assistance under the Act. Section 63 of the Act therefore provides a scheme by which equality of treatment 10 between applicants in legally recognised relationships and significant non-legally recognised relationships can be achieved. To determine how to construe the phrase “relationship in the nature of marriage” under s 63(b), the provision should be looked at as a whole. Legally recognised relationships It is very easy to tell when a legal marriage commences; there will be a certificate and a date of commencement. Within a legal marriage or de facto relationship a dependent spouse or partner has an easily recognisable right to maintenance from the other spouse or partner. Applicants for social assistance who are legally married must provide sufficient information so as to enable the decision-maker to set aside the usual presumption that their 20 spouse or partner will financially support them. In order for the Director-General to regard such applicants as single, s 63(a) is relevant: 15

The Director-General may, in his discretion— 25

(a) regard as single any applicant or beneficiary who is married or in a civil union but is living apart from his wife or her husband …

A “living apart” test was first present in ss 17(3) and 21(3) of the Social Security Act 1938, and its form was retained in s 27B(1) of the Act. The starting point for determining the end of a marriage, ever since the case of Sullivan v Sullivan [1958] NZLR 912 (CA), is 30 whether two factors exist: a mental attitude averse to cohabitation from at least one of the parties, and significant spatial separation. This question is not material for this case except by way of illustration of the operation of the s 63 scheme. Non-legally recognised relationships In the case of applicants who have been in non-legally recognised relationships, such 35 as (but not limited to) de facto relationships, it would be demonstrably unfair that they should be able to get assistance when those with legal status, by way of marriage, ­cannot. ­Consequently, as also noted by Thomas J in these proceedings, the Act is concerned to ensure that de facto couples are not treated more leniently than those in legal marriages 40 (Report of the Royal Commission on Social Security 1972 at p 248). To that end, the ­Director-General of the Department of Social Welfare has been given a broad discretion to regard applicants in de facto relationships as being in a “relationship in the nature of marriage”. The Director-General may, in his or her discretion, “regard as married any two people who, not being legally married or in a civil union, have entered into a relationship in the 45 nature of marriage”. Once the Director-General decides to either regard an applicant as being single for benefit purposes under s 63(a) or living in a relationship in the nature of marriage for the purposes of s 63(b) (as the facts require), he or she: 50

… may determine a date on which they shall be regarded as having commenced to live apart or a date on which they shall be regarded as having entered into such a relationship, as the case may be, and may then in the Director-General’s discretion

grant a benefit, refuse to grant a benefit, or terminate, reduce, or increase any benefit already granted, from that date accordingly. Of course, for the purposes of this part of the enactment, it is important to note that determining when a relationship of legal status ends is problematic, just as it is also dif5 ficult to tell when a “relationship in the nature of marriage” commenced. The issue for this Court may seem simple; if Ms Ruka was not in a “relationship in the nature of marriage” at the time she sought eligibility under s 27B, she will not have been in fact providing false information to the Department, regardless of her intent to do so. Under the offence provision, s 127, there can be no liability for withholding information from 10 the Department for failing to tell them of her relationship, if indeed she had no qualifying relationship to confess. Further, if she had not withheld material information and her eligibility for benefit remained intact she cannot have committed the actus reus under s 229A of the Crimes Act 1961 (fraudulently using a document to obtain a pecuniary advantage), regardless of her intent to do so. 15 Administrative discretion and interpretation I agree with Blanchard and Thomas JJ who identify that the statutory context is of critical importance in determining how the phrase “relationship in the nature of marriage” is to be interpreted. Henry J also underscores the highly discretionary nature of s 63(a) 20 and (b). Indeed, this section offers a high degree of discretion with few obvious controls over how that discretion is to be exercised. There are no objective criteria that must be met other than the requirement for a “relationship in the nature of marriage” to be in place. Broad discretion brings with it attendant risks; of it being exercised in an arbitrary fashion; in a way that creates uncertainty and unpredictability. This discretion has very old roots in 19th 25 century decisions of parish committees (for example) to allocate charity only to deserving cases. Arguably, moral and social norms remain important in determining the use of such discretion today, leaving such broad administrative decision-making power open to abuse in the absence of effective controls, and even irrespective of parliamentary purpose (RE Goodin, “Welfare, rights and discretion” (1986) Oxford Journal of Legal Studies 30 232 at pp 239–246). Parliamentary purpose is one of the most important factors that provides guidance in the exercise of broad administrative discretion. This Court has very recently held that such discretion cannot be fettered or controlled for some purpose which could not sensibly be said to promote the objects of the Act (Ankers v Attorney-General [1995] 2 NZLR 595 at p 599). 35 Of course, as outlined in s 5(j) of the Acts Interpretation Act 1924, the purpose of the legislation is the primary consideration in determining meaning: (j) Every Act, and every provision or enactment thereof, shall be deemed remedial, whether its immediate purport is to direct the doing of anything Parliament deems to 40 be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning, and spirit. The object of the Act, as Richardson and Blanchard JJ identify so succinctly, is to pro- 45 vide financial assistance to people who for some reason are unable adequately to support themselves. This object is clearly ascertainable in the long title: An Act to provide for the Payment of Superannuation Benefits and of other Benefits destined to safeguard the People of New Zealand from Disabilities arising from Age, 50 Sickness, Widowhood, Orphanhood, Unemployment, or other Exceptional ­Conditions;

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[…] to provide such other benefits as may be necessary to maintain and promote the Health and General Welfare of the Community. 5

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This statement is clear evidence of purpose, although under s 5(f) of the Acts Interpretation Act 1924 the title is not in itself an enactment within the legislation. Therefore determining whether those who would seek financial assistance are in fact able to look after themselves is of critical importance in the administration of social security law. It is in this context that s 63 must be viewed; as one of the many tools available to the DirectorGeneral to target financial assistance to those who need it, while doing so in a manner that does not create inequity between those in legally recognised marriages, and those in relationships in the nature of marriage. The phrase “relationship in the nature of marriage” cannot be read down in such a way as to defeat the objects of the Act. In addition, it must be given its fullest and most comprehensive construction so as to ensure that all points of comparability with legal marriage are adequately considered. This Court has focused on the indicia comprising the fundamental characteristics of a marriage that should be identifiable in a non-legally recognised relationship in the nature of marriage. The majority has identified financial interdependence as the primary characteristic, in view of the objects of the Act, with emotional commitment as the second criterion. Financial interdependence and emotional commitment have thus been identified as the core fundamental characteristics of a relationship in the nature of marriage for the purpose of the Act. With respect, I consider that this approach of defining, as a legal test, the core components of a relationship in the nature of marriage fetters the Director-General’s exercise of his or her discretion to determine whether such a relationship exists by the consideration of other potentially critical aspects of such a relationship. In this respect I concur with Henry J. Defining a relationship in the nature of marriage prior to the exercise of discretion to determine if a relationship in the nature of marriage exists seems to me to be putting the cart before the horse. Whether such a fetter sensibly promotes the objects of the Act is the point to which I now turn. As identified above, s 63 creates a tool for the Director-General to effect equity between those in legally recognised marriages and those in other relationships not so recognised, to ensure that those in the latter category do not receive a lower or higher threshold for eligibility for financial assistance. In my view there are other circumstances which might be critical to the definition of a relationship in the nature of marriage that might be excluded entirely if this Court adopts the majority’s suggested approach. I agree with the observation of Henry J that custom may be one way to identify a relationship that does not have the recognition of the Marriage Act 1955, but may require recognition pursuant to s 63(b). Tikanga Maori is certainly something that New Zealand courts ought to apply in construing statutory words and phrases, lest customary rights be inadvertently eradicated. One example of a relationship expunged by a side-wind by the approach taken by the majority of this Court is that of traditional Maori marriage, to the extent that such a practice remains extant in Maori society; a matter for evidence to determine. The phenomenon of Maori marriage is described in Donna Durie-Hall and Joan Metge’s paper, “Kua Tutu Te Puehu, Kia Mau: Maori Aspirations and Family Law” in Family Law Policy in New Zealand (Oxford University Press, Auckland, 1992) at p 62, and discussed in the case of Rira Peti v Ngaraihi te Paku (1889) 7 NZLR 235. In the words of Reed J in re Wi Tamahau Mahupuku (Deceased), Thompson v Mahupuku [1932] NZLR 1397, at p 1399: “[I]n what is termed a ‘Maori customary marriage’ no formality whatsoever is required, the parties simply living together, and if they tire of each other they separate without

formality and enter into fresh relations with others, and that which, if the marriage were a legal one, would be termed polygamy is recognised. These unions are recognised by the Native Land Courts and are sufficient for the purposes of succession to the estates of Maoris and half-castes, whether the estate consists of land or personal property, and whether the land is customary or freehold. No such union or customary 5 marriage, however, is valid for any other purpose.” Of great importance in determining the existence of a customary Maori marriage is the extent of family or whanau, hapu or iwi collective sanction of that relationship. Marriages might require more formal sanction in the case of ariki (senior chiefly) bloodlines. 10 The basis of support for individuals in Maori marriages has not been the resources created within the relationship, but the whanau and hapu from whence both parties to the relationship hail. The existence or dissolution of such relationships could be, and often were, the subject of collective rather than individual decision making (A Mikaere, “Maori Women: Caught in the Contradictions of a Colonised Reality” (1994) 2 Waikato Law 15 Review 125 at p 128). By focusing on the degree of emotional commitment and financial interdependence between individuals in defining a relationship in the nature of marriage, the possibility is ignored that individuals in a customary Maori marriage may not require financial interdependence for such a relationship to be considered valid. The aim of creating equivalency 20 between legally and non-legally recognised relationships is not to ensure that relationships in the nature of marriage are legal marriages in all but certification. The purpose of creating such equivalency is to determine if individuals in such relationships may be presumed to be in receipt of sufficient support, rendering them ineligible for social security. Application to the current case In order for Ms Ruka to have been guilty of fraudulently using a document under s 229A of the Crimes Act 1961, or omitting to provide relevant information under s 127 of the Social Security Act 1964, she must have withheld material information directly affecting her eligibility for financial assistance under the Act. She has admitted withholding such information, and has also admitted to intentionally providing what she considered to be false information to the Department; that she was not in a relationship in the nature of marriage. Her own view appears to have been that she was in such a relationship; it is the job of this Court to determine if that was indeed the case at all times material to the offending. At trial, the Crown proved that by not declaring the relationship, Ms Ruka committed offences under s 127. Such omissions were held to be in breach of her duty to provide all relevant information to the Department of Work and Income under s 12 of the Act. She was also convicted of fraudulently using a document for pecuniary advantage (s 229A). Putting Ms Ruka’s own subjective belief to the side for the moment, the objectively determined nature of the relationship is at the heart of this case. If Ms Ruka and T demonstrated sufficient aspects in their relationship that would justify the Director-General in recognising it as a relationship “in the nature of marriage” for the purposes of s 63(b) of the Act, then Ms Ruka would not have been entitled to the domestic purposes benefit, and her convictions must stand. If, on the other hand, their relationship cannot be accurately characterised as a “relationship in the nature of marriage” then she was not required to declare it as such under s 12, and no offences were therefore committed under either s 127 of the Social Security Act 1964 or s 229A of the Crimes Act 1961. At the time of the applications, Ms Ruka did not declare that she was in a relationship with T. One curious point of evidence was available to this Court, but not discussed in ­argument before us. On 26 January 1993 Ms Ruka was interviewed at a DSW office

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Ruka v Department of Social Welfare—Judgment 99

100  Māmari Stephens

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about her failure to mention the relationship with T. After saying that (her child’s) father was T, Ms Ruka was asked when she started living with T. She answered that she started living with T as a de facto partner in 1974. The interview transcript records the following exchange: Q: Why did you not notify the Department that you had entered into a de facto/married type relationship with Mr T? A: At the time he was not working and my father said it is no way to bring up my grandchild. I had to apply for the Domestic Purposes Benefit. I should have let Social Welfare know about the situation but I did not. Ms Ruka is a Maori woman raising a Maori child. We do not know her iwi or hapu identity; this information was not sought during the investigation process, nor was it sought for the purpose of a cultural report under s 16 of the Criminal Justice Act 1985. The transcript above shows that Ms Ruka’s father appears to have been an important factor in her deciding to apply for social security. We have no further information, and it may well be that there is no specific cultural importance that can be placed upon this material. However, there is a possibility, however remote, that Ms Ruka’s whanau were indeed integral to determining whether the relationship she was in “counted” as a customarilydetermined relationship that could in turn be understood to be a “relationship in the nature of marriage” for the purposes of s 63(b). If this matter had been argued before us, and if there was sufficient evidence that these concerns were at issue, we might have had to call upon concepts such as “matua rau” or collective nurturance of children, as relevant to such a discussion. A further question may be raised, in situations where Maori customary marriage may be thought to exist; namely, the extent to which the existence of violence and abuse will dissolve such a relationship on the basis of the extraordinary harm such violence and abuse perpetrates upon the collective entities to which both parties of the relationship belong. There are certainly customary precedents for the formalisation of divorce on the basis of such treatment as a means of returning to a state of equilibrium (P Buck, The Coming of the Maori (Whitcombe & Tombs Ltd, Maori Purposes Fund Board, Wellington, 1962); WB Otorohanga, Where the White Man Treads (Wilson & Horton Ltd, Auckland, 1928) at pp 29-31; E Best, “Maori Marriage Customs” (Lecture Series at the Auckland Institute, 5 October 1903) at p 59). The extent of the abuse Ms Ruka suffered is not material for the purposes of determining the existence of a relationship in the nature of marriage. I agree with the learned judges that this Court’s decision does not establish a threshold of violence that an individual must experience in order to obviate a relationship in the nature of marriage. However, had evidence established the existence of a customary component of the relationship between T and Ms Ruka, further questions would have had to be asked about whether that abuse vitiated the customary relationship. I agree with the majority that Ms Ruka was not in a relationship in the nature of marriage. I also agree that the lack of financial interdependence and emotional commitment fatally undermined the characterisation of the relationship as a relationship in the nature of marriage. I do not agree with the majority, however, that the presence of those two factors alone should determine the exercise of discretion under s 63(b) to the exclusion of other potentially material factors. One material factor in a case like the one before this Court might have been customary Maori concepts of marriage that would have placed a greater focus on the defendant’s position within her whanau, rather than considering her merely as the

victim of an abusive and isolated relationship. Had these factors been present they surely would have been a proper matter for the Director-General to take into account in the exercise of his or her discretion under s 63(b). No doubt, other cultures and customary practices could well yield similar issues. The discretion under s 63(b) ought not to be read so narrowly. 5 Appeal allowed; convictions quashed

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Ruka v Department of Social Welfare—Judgment 101

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7 Commentary on Lawson v Housing New Zealand State Housing, Market Rents and Families Facing Eviction DEAN R KNIGHT

Introduction Lawson v Housing New Zealand was an unsuccessful challenge to the government’s policy of charging market rents for state housing.1 Mrs Joan Lawson brought the challenge as she and her husband, Thomas, faced eviction from the state house they lived in for decades because they were unable to meet the increased rent. But her challenge failed. The High Court ruled that the policy of market rents was not able to be challenged by judicial review and an associated assurance that no one would lose their house was similarly not enforceable. Human rights and international law obligations which touched on the adequacy of housing also did not prevent the move to market rents. The policy of market rents at the time headlined a change in government approach to the provision of state housing. For many generations, housing assistance was provided to lower income earners through subsidised rental of state-owned housing stock. However, in the early 1990s, the then National Government repudiated this social initiative, driven by its neo-liberal ideology and commitment to the new public management style of ­governance.2 State-owned houses were transferred to a new arms-length state entity, Housing New Zealand (Housing NZ). Rents were progressively increased to market rates, removing the subsidy state tenants enjoyed. In lieu, low income earners were entitled to targeted welfare assistance through a new accommodation benefit, available regardless of whether the beneficiary rented a state or private house. Thus, consistent with the o ­ bjectives 1  Lawson v Housing New Zealand [1997] 2 NZLR 474 (HC); Lawson v Housing New Zealand (HC Auckland M538/94, 29 October 1996) (Lawson (unreported judgment)) (the reported version of the case is an abridged version of the unreported version). Thanks, subject to the usual caveat, to Alex Ladyman and Diana Youssif for research assistance. 2  For background, see M Wilson, The Struggle for Sovereignty (Wellington, Bridget Williams Books, 2015) ch 3; J McLean, ‘New Public Management New Zealand Style’ in PP Craig (ed), The Executive and Public Law (Oxford, Oxford University Press, 2006); and J Boston and J Halligan, ‘Political Management and New ­Political ­Governance’ in H Bakvis and MD Jarvis (eds), From New Public Management to New Political Governance (­Montreal, M ­ cGill-Queen’s University Press, 2012) 204.

104  Dean R Knight of new public management, the commercial (housing ownership) and public interest (welfare assistance) activities of the state were separated, seeking to promote transparency about the extent to which the government subsidised social housing. The new regime of market rent hurt Mrs Lawson and her husband, as the rent on their state house—27 Oranga Avenue, Onehunga, a house they occupied since 1947—more than doubled over three years. The rent payable rose from $75 per week (pegged at 25% of their income) to $165 per week (a market rate, equivalent to over half their income), only offset by a modest state-paid accommodation supplement ($41 per week, later rising to $47 per week). The Lawsons were unable to meet the increased rent and Housing NZ moved to terminate their tenancy. In order to avoid eviction, Mrs Lawson challenged the government’s policy of market rents by issuing judicial review proceedings against Housing NZ and its shareholding ministers, the Ministers of Housing and Finance.3 Mrs Lawson’s key argument was that the policy to transfer state houses to Housing NZ and to gradually increase rent to market rates did not comply with requirements of the Housing Restructuring and Tenancy Matters Act 1992 (NZ), the legislation constituting Housing NZ and setting up the governance arrangements under which market rents were applied. The legislation did not explicitly require market rent to be charged on housing stock transferred to Housing NZ, although it was clear that the government intended that market rents be charged. The power to set market rents came from Housing NZ’s general mandate (viz ‘principal objective’) and discretionary powers set out in s 4 of the Act. That is, Housing NZ was charged with being ‘a successful business that will assist in meeting the Crown’s social objectives’, as set out in its statement of corporate intent or otherwise agreed, and, ‘to this end’, was required to be ‘profitable and efficient’, exhibit a sense of ‘social responsibility,’ and be a ‘good employer’.4 The relevant social objectives were narrated in general terms by the government in correspondence with Housing NZ and translated into a mission statement and various operational goals and targets. Mrs Lawson argued first, the shareholding ministers’ actions in framing the social objectives for inclusion in Housing NZ’s statement of corporate intent were flawed because they failed to ensure affordable rentals. Secondly, she argued that Housing NZ’s consequential decision to charge market rents failed to have proper regard to the Crown’s social objectives and the duties imposed on it by the legislation.

The Original Judgment In the original judgment, the High Court dismissed Mrs Lawson’s application for judicial review in its entirety. Williams J ruled, first, the policy to increase rents was not amenable to the supervisory jurisdiction of judicial review because of its commercial and discretionary character; in other words, the policy was not suitable to be tested against public law

3  The proceedings were intended to be a test case, supported by the State Housing Action Coalition, although the formal application to bring the case as a representative action on behalf of all state housing tenants was not pursued; see Lawson (n 1) 479. 4  Housing Restructuring and Tenancy Matters Act 1992 (NZ), s 4. Compare (and contrast) with s 4(1) of the State-Owned Enterprises Act 1986 (NZ); see Lawson (unreported judgment) (n 1) [24].

Lawson v Housing New Zealand—Commentary 105 standards and norms. Secondly, the government’s assurance in its policy statement that ‘no one will be forced to move’ did not create an enforceable legitimate expectation. Thirdly, charging market rent did not breach the right not to be deprived of life under s 8 of the New Zealand Bill of Rights Act 1990. Finally, the government’s commitment to the provision of adequate housing under various international law instruments also did not prevent the increase in rent; it was not the role of the domestic courts to assess strict compliance with such obligations and, in any event, the policy had been sufficiently informed by the international law obligations or was not inconsistent with them. On the question of amenability, Williams J said the decision to charge market rent was not reviewable in the absence of bad faith, corruption or fraud, echoing the Privy ­Council’s extremely deferential approach to the reviewability of commercial decisions of stateowned enterprises in Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd.5 Mrs ­Lawson’s challenge failed because it sought to challenge the merits of Housing NZ’s discretionary—and contractual—decision, including the related balancing of factors that informed it. ‘Housing New Zealand’s decision to shift the rents for its houses to market rent and the means by which that was done was’, Williams J said, ‘a matter which lay within the discretion of the board acting in accordance with its statutory obligations and within the given objectives’.6 Reading between the lines, the Judge was especially concerned that the decision was a matter of judgement involving balancing of competing factors; thus, the decision was ‘for the board and for the board alone’.7 Similarly, the shareholding ministers’ actions framing Housing NZ’s mission and social objectives were also ruled not to be amenable to review. The high degree of policy content and wide range of considerations to be balanced meant the decisions did not ‘readily lend themselves to judicial review’.8 Despite ruling that the key decisions of Housing NZ and the shareholding ministers were not amenable to review, Williams J went on to assess Mrs Lawson’s other main arguments. Her argument that she had a legitimate expectation that she would not be forced out of her house if she could not afford the market rents was rejected. Mrs Lawson pointed to a statement in the ‘Yellow Book’ (a document explaining the new housing policy in detail issued by the Minister of Housing when the policy was announced in the budget):9 ‘While State House tenants will pay more for their accommodation in the future, no one will be forced to move’ (emphasis added).10 This amounted to an assurance, she argued, which created an enforceable legitimate expectation. But Williams J said this claim ‘embroiders’ the assurance; an expectation could not arise from such a misinterpretation, whether against Housing NZ or the shareholding ministers. No-one would reasonably expect the critical

5  Lawson (n 1) 485, adopting Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC). Williams J adopted the language of amenability to express the idea of (non‑)justiciability. On the preferred language of justiciability and its conceptual foundation, see J Cassie and D Knight, ‘The Scope of Judicial Review: Who and What May Be Reviewed’ in Administrative Law (Wellington, New Zealand Law Society, 2008) 72 and C Finn, ‘The concept of “justiciability” in administrative law’ in M Groves and HP Lee (eds), ­Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge, Cambridge University Press, 2007) 143, 144. 6  Lawson (n 1) 485. 7 ibid. 8  ibid 488. 9  The document was described as the Yellow Book due to the colour of its cover; Lawson (unreported judgment) (n 1) [13]. 10  ibid [15].

106  Dean R Knight part of the statement to be literally true: ‘The starkness of the phrase “no one will be forced to move” is softened by its surroundings’.11 In any event, Williams J doubted Mrs L ­ awson could insist that any assurance should be enforced, given there was no evidence she knew of or relied on the assurance.12 Williams J also expressed concern that insisting on the ­substantive performance of any expectation would move the court beyond reviewing matters of procedure, fairness and quality: ‘The Court cannot review the substance or merits of the decision’.13 Such comments expressed the then traditional and conservative philosophy about the role of the courts in enforcing expectations created by government, where such enforcement went beyond procedural entitlements and sought delivery of a particular substantive outcome. Notably, the decision in Lawson came before the Court of Appeal of ­England and Wales laid to rest any doubts about whether (substantive) legitimate expectations were legally enforceable in the germinal case of R v North and East Devon Health Authority, ex parte Coughlan(Coughlan).14 Mrs Lawson’s reliance on domestic and international human rights instruments was also rejected. She argued that Housing NZ and the ministers were complicit in delivering ­unaffordable and inadequate housing and this breached her ‘right to life’ under s 8 of the New Zealand Bill of Rights Act 1990. However, Williams J ruled such matters fell outside the scope of the right (‘it would require an unduly strained interpretation of s 8’); in any event, the government measures and tailored responses to minimising hardship amounted to, he said, reasonable limits on such a right, which under s 5 of the New Zealand Bill of Rights Act meant any breach was justified and therefore not unlawful.15 Mrs Lawson also argued that the ministers failed to have proper regard to New ­Zealand’s international obligations relating to the adequacy of housing (especially under the Universal Declaration on Human Rights, International Covenant on Economic, Social and Cultural Rights, and associated guidance from UN bodies) when formulating the social objectives for Housing NZ and monitoring the impact of the reforms.16 Williams J ruled that the market rents policy had been sufficiently informed by the international law obligations or was not inconsistent with them, especially because the key instruments were phrased in general terms. ‘The policy of government on housing’, he said, ‘does not appear to run counter to the obligation given the continuation of the state housing rental stock and the other measures undertaken such as facilitating transfers to more appropriate accommodation and the accommodation benefit’.17 In any event, Williams J took the view that unincorporated international instruments only created an

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Lawson (n 1) 490. ibid 489. 13  ibid 490. 14  R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 (EWCA). The Court of Appeal ruled that the state body was required to honour an assurance given to Mrs Coughlan that she would have a ‘home for life’ in a particular nursing home. See generally SJ Schønberg, Legitimate Expectations in Administrative Law (Oxford, Oxford University Press, 2000), and M Elliott, ‘Legitimate Expectation: The Substantive Dimension’ [2000] 59 CLJ 421. 15  Lawson (n 1) 494 and 496. 16 ibid 479, relying on, amongst other things, the Universal Declaration of Human Rights (adopted 10 December 1948), UNGA Res 217A (III), International Covenant on Economic, Social & Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3. 17  Lawson (n 1) 498. 12 

Lawson v Housing New Zealand—Commentary 107 obligation to consider them, as exemplified then in Ashby v Minister of Immigration and Tavita v M ­ inister of Immigration.18 Under the relevancy doctrine, it was sufficient the ministers ‘made efforts to balance the competing factors’, as they did with the housing reforms.19 It was not for the court to judge whether the government had ‘fully complied with those obligations’; that was ‘a matter on which it may be judged in international forums’.20

The Feminist Judgment Baird J’s feminist judgment, presented as an alternative to the original High Court judgment, adopts a more human-centred—and more woman-centred—approach. It gives voice to Mrs Lawson and emphasises the adverse effect of the move to market rents on the Lawsons. While remaining faithful to judicial review’s limited supervisory tradition,21 the feminist judge anchors her analysis of the decisions in their significant personal effect on the Lawsons. This richer account opens up review methodologies that more closely scrutinise compliance with international obligations, more vigorously test the extent the decision was informed by the mandated factors, and more readily recognise unfairness arising from the failure to honour legitimate expectations. This different emphasis ultimately leads to a more favourable outcome for the Lawsons, with the decisions declared unlawful and sent back for reconsideration. But, like the original judgment, the feminist judge is unable to treat the Lawsons’ concerns as a human rights violation because the critical right to housing is not protected in domestic legislation. The factual narrative adopted by Baird J gives prominence to the lived experience of Mrs Lawson. The judgment opens by recording Mrs Lawson’s long-standing occupation of her state house; it’s her family home, shared with her husband. The move to market rents is explained by reference to the Lawsons’ day-to-day circumstances and challenges, with a detailed account of the personal and financial troubles the increased rental costs caused them. The account of their turmoil is punctuated with their paramount concern that, as Baird J records it, ‘they will face “a terrible wrench” away from their neighbourhood and community, and be left to the mercy of the private rental market’. This contrasts with the original judgment, where Mrs Lawson’s circumstances received little priority: they were first mentioned on page 37 after an extended account of the government’s restructuring of state housing; and, then, only for four brief paragraphs.22 Questions about the impact of the reforms were quickly abstracted, as the account moved to evidence about the general effect of the reforms on state house tenants as a class.23 In short, Mrs Lawson’s story is

18  Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA) and Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA). 19  Lawson (n 1) 498. 20 ibid. 21  M Fordham, Judicial Review Handbook, 4th ed (Oxford, Hart Publishing, 2004) [P15]. 22  Mrs Lawson’s anonymity is amplified in the reported judgment because around 44 pages of the factual ­narrative is abridged, omitting, amongst other things, ‘the position of Housing Corporation tenants generally and the appellant in particular’: Lawson (n 1); cf Lawson (unreported judgment) (n 1) 37–49 especially. 23  Lawson (n 1) 479.

108  Dean R Knight told, and given prominence, in the feminist judgment, in contrast to the original judgment where she was almost anonymous. Baird J deftly employs this richer factual account in order to justify more intensive review of the administrative decisions, while taking care not to attempt to stand in the shoes of the primary decision-maker by seeking to remake the decision. The existing potential of judicial review, and its inherent contextualism, is harnessed in a way that is sympathetic to the concerns underlying Mrs Lawson’s claim. Concerns about jurisdiction and justiciability are swept away. The Ministers’ actions in framing Housing NZ’s objectives are treated as being reviewable even though they involved matters of policy; particular significance is placed on the disproportionate effect on women and other vulnerable groups, along with the need to avoid the abuse of power. Housing NZ’s decision to charge market rents is treated as being susceptible to review, on the basis that it is an important decision affecting the rights of individuals; the (commercial) character of the decision and (quasi-private) character of the decision-maker are acknowledged but given less prominence. Questions of amenability are inherently circumstantial and require a judge to evaluate the extent to which the issues should and can be reviewed against public law principles in a judicial setting.24 Thus, Baird J could readily follow a feminist tradition of practical reasoning by embracing the particular circumstances of Mrs Lawson’s plight and her demand for individualised justice.25 Abstract countervailing concerns about the competence and legitimacy of the courts scrutinising matters of policy and commercial choices—often framed as categorical no-go zones—are still acknowledged but given less significance. In exposing decisions to privatise and privatised decisions to review, the approach repudiates ­neo-liberal efforts to remove some decisions from direct societal oversight; ideas of collective well-being, interdependence and community welfare underpin Baird J’s conclusion that market-style governance and decisions should be subject to public law standards.26 Baird J’s approach when reviewing the propriety of the decisions themselves is, again, faithful to administrative law’s supervisory method but attentive to the features of Mrs Lawson’s case which justify increased scrutiny of the decisions. On the one hand, the feminist judge is careful not to fall into the prohibited method by substituting her judgement on the merits for that of the primary decision-makers. On the other hand, the significant effect on Mrs Lawson and her husband is used to more carefully test whether the decisions lived up to public law standards. Again, practical reasoning trumps categorical formalism. First, Baird J looked at whether Housing NZ properly took heed of the Crown’s social objectives and interests of the community, in contrast to Williams J who ruled it was entirely

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Finn, ‘The concept of “justiciability”’ (n 5) 143. Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829, 850 and R Hunter, ‘An Account of Feminist Judging’ in R Hunter, C McGlynn and E Rackley (eds), Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing, 2010) 30, 38 and 41. 26  For a similar perspective on privatisation, albeit in a different legal context, see M McDermont, ‘Commentary on YL v Birmingham City Council and Others’ in Hunter, Feminist Judgments (n 26) 311, commenting on YL v Birmingham City Council [2007] UKHL 27, [2008] 1 AC 95; see generally P Rishworth and J McLean, ‘Human Rights Obligations in the Private Sector: Reflections on YL v Birmingham City Council and the Meaning of Public Function’ in C Forsyth et al (eds), Effective Judicial Review: A Cornerstone of Good Governance (Oxford, Oxford University Press, 2010) 101. 25  K

Lawson v Housing New Zealand—Commentary 109 a matter for Housing NZ. Ultimately, Baird J does not disagree with extent to which the social objectives and interests of the community were considered but, notably, she turns her mind to whether this ‘delicate assessment’ was robust in light of the effect of the decision on the Lawsons. Secondly, Baird J is critical of the ministers’ failure to assess the relevance of the applicable international obligations to the privatisation enterprise. Building on the Court of Appeal’s admonishment in Tavita that international obligations cannot be summarily ignored by the government,27 Baird J rules that the International Covenant on Economic, Social and Cultural Rights is an implied mandatory consideration, again, animated by the particular context. These international obligations, especially the right to adequate housing, needed specific consideration. Baird J rejects the government’s argument that this obligation could be discharged by implicitly factoring in analogous principles. Finally, Baird J rules that Mrs Lawson had a legitimate expectation that she would not be evicted. The government’s assurance in the Yellow Book that tenants would not be forced to move is seen as being significant and is augmented by reliance on the length of the Lawsons’ tenancy. Principles of fairness and the importance of trust-and-confidence between citizen and state are central to the conclusion that the expectation was deserving of protection—and protection in substantive terms, such that the government should not renege on the assurance. These principles, which capture feminist values, informed the common law’s move to recognise a substantive legitimate expectation doctrine and acceptance of some judicial incursion into the merits of administrative decisions was informed by these ­principles.28 Baird J’s use of these principles anticipates the English Court of Appeal’s imprimatur of substantive protection of expectation in Coughlan but draws on seeds already sown in developing legitimate expectation jurisprudence. Resort to common law judicial review doctrine is necessary because of the failure of domestic human rights instruments to squarely enshrine a right to adequate housing. As Baird J accepts, in agreement with Williams J, the Lawsons’ complaint about the threat of eviction could not be expressed in terms of the denial of the right to life under the NZ Bill of Rights Act. At the end of the day, the heart of the case was about a right to adequate housing, a right that was, and remains, conspicuously absent in New Zealand’s human rights framework.29 Unless and until domestic human rights instruments incorporate a right to housing, families denied adequate housing by state action or inaction, like the Lawsons, will face challenges expressing their plight in the legal domain. The gender dimensions of housing have been highlighted by feminist voices.30 Baird J’s feminist judgment follows in that tradition by taking seriously Mrs Lawson’s concern about the importance of a home—her home—to her and her family. The Judge works

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Tavita (n 18) 266.

28 Schønberg, Legitimate

expectations (n 14); Elliott, ‘Legitimate Expectation’ (n 14). Compare, especially, the recognition of a right to housing in s 26 of the South African Constitution and its judicial enforcement in Government of the Republic of South Africa v Grootboom [2000] ZACC 19. For commentary, see P de Vos Grootboom, ‘The Right of Access to Housing and Substantive Equality as Contextual Fairness’ (2011) 17 South African Journal on Human Rights 258 and LA Williams, ‘The Right to Housing in South Africa: An ­Evolving Jurisprudence’ (2014) 45 Columbia Human Rights Law Review 816. 30  See, eg, S Watson, Accommodating Inequality: Gender and Housing (Sydney, Allen and Unwin, 1988) and I Westendorp, Women and Housing: Gender Makes a Difference (Cambridge, Intersentia, 2007). 29 

110  Dean R Knight hard to translate that central concern into legal terms, albeit through common law principles of good decision-making. Subsequent changes in government and thinking about welfare saw the move to market rents eventually being wound back.31 Yet the role of the state in relation to social housing continues to be unsettled. Reform continues, most recently with adoption of public-private partnerships where some state housing stock is sold to private providers who deliver social housing on the government’s behalf.32 The need for feminist voices to highlight the consequential implications for women continues, especially in the legal domain.

31  Housing Restructuring (Income-Related Rents) Amendment Act 2000 (NZ); L Murphy, ‘Reasserting the “Social” in Social Rented Housing: Politics, Housing Policy and Housing Reforms in New Zealand’ (2003) 27 International Journal of Urban and Regional Research 90; L Murphy, ‘To The Market and Back: Housing Policy and State Housing in New Zealand’ (2003) 59 GeoJournal 119. 32  For an unsuccessful challenge to these recent reforms, see State Housing Action Inc v Minister of Housing [2016] NZHC 2924, [2017] 2 NZLR 281.

Lawson v Housing New Zealand

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High Court  Auckland 4, 5, 6, 7, 8 March; 29 October 1996 Baird J

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Application This was an application for judicial review of decisions by Housing New Zealand to 15 increase rents for state houses to market levels. Lee Lee Heah for plaintiff (JOM Lawson). Phillipa Muir and Shan Wilson for the first defendant (Housing New Zealand). Mary Scholtens and Jane Underwood for second and third defendants (the Ministers of Housing and Finance).

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Cur adv vult BAIRD J. Mrs Joan Olive Marion Lawson and her husband Thomas have been t­ enants in a two-bedroom state house at 27 Oranga Ave, Onehunga, Auckland for nearly 50 years. However, since 1990, the Government has implemented a policy whereby houses formerly owned by the state have been transferred to Housing New Zealand and their rents progressively increased to market rates. For Mrs and Mr Lawson, this has meant an unaffordable increase in their weekly rent from $75 per week in 1992 to $165 per week in 1995 (an increase of over 100 per cent). Mrs Lawson now seeks to challenge the move to market rents by way of judicial review of the actions of Housing New Zealand and the Ministers of Housing and Finance. This application is brought by Mrs Lawson in her own right. It is however notable that many other tenants are or will be affected by the move to market rents. The new policy has been subject to extensive protests by the State Housing Action Coalition (SHAC). On 9 September 1993, Mrs Lawson joined a “rent strike” coordinated by SHAC. Since that time, she has paid only $75 per week in rent plus the Government-funded Accommodation Supplement ($41 per week from 19 April 1994, later increased to $47 per week). On 12 ­January 1994, Housing New Zealand applied to the Tenancy Tribunal for an order ending Mrs L ­ awson’s tenancy because of failure to pay her increased rent. Mrs Lawson replied by seeking a declaration in similar terms to that which she seeks in this application. On 12 April 1994, the Tenancy Tribunal dismissed her application for lack of jurisdiction, which triggered the current application. Mrs Lawson is in her mid-seventies, and Mr Lawson is in his early eighties. They are pensioners, and together receive the married rate of national superannuation of $304.24 per week. Mr Lawson is in poor health with limited mobility, spending most of his time in bed or a chair. They are reluctant to shift from the Onehunga area given the length of time they have lived there. They have raised three children at 27 Oranga Ave. Their only assets are chattels and a small legacy. They have endeavoured to increase their income by taking in boarders, including two of their six adult grandchildren. They have

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112  Natalie Baird also ­endeavoured to cut their living costs by wearing more clothing and doing without ­heating. Mrs and Mr Lawson provided a number of budgets showing that they will be ­unable to manage if required to pay full market rent. Mrs Lawson says their inquiries suggest that the only accommodation in the same area would require a higher rent. The deci5 sion in these proceedings is therefore of huge importance as it will ultimately determine whether Mrs and Mr Lawson are able to remain in their home of nearly 50 years or whether they will, as Mrs Lawson says in her evidence, face “a terrible wrench” away from their neighbourhood and community, and be left to the mercy of the private rental market. To determine Mrs Lawson’s application for review, the following issues must be 10 decided: 1. 2. 15

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Is the decision of Housing New Zealand to move to market rents amenable to review? Did Housing New Zealand fail to have (proper) regard to the Crown’s social objectives and the interests of the community in its rent-setting process? Are the actions of the Ministers of Housing and Finance amenable to judicial review? Did the Ministers fail to have (proper) regard to New Zealand’s international obligations including Mrs Lawson’s right to housing? Did Housing New Zealand and the Ministers breach Mrs Lawson’s right to life as protected by s 8 of the New Zealand Bill of Rights Act 1990 by the move to market rents? Did Housing New Zealand and the Ministers breach Mrs Lawson’s legitimate ­expectation that she would not be forced out of her home if she was unable to afford the new market rental?

Issue one: Is the decision of Housing New Zealand to move to market rents amenable to review? Mrs Lawson seeks judicial review under the Judicature Amendment Act 1972 (or, under the common law or Part VII of the High Court Rules). A threshold issue is whether Housing New Zealand’s decision to move to market rents is amenable to review. The market reforms of the late 1980s and 1990s have challenged the divide between public law and private law. The reforms have reduced the role of government by transferring former governmental functions, such as the provision of state housing, to the corporate and private sectors. Despite this, it is necessary to maintain accountability mechanisms so people like Mrs Lawson have an avenue for redress. Corporatising or privatising entities such as Housing New Zealand changes neither the nature of the public service provided nor the service provider’s position of near-monopoly supplier. Housing New Zealand oversees nearly 70,000 state houses, and is currently the primary supplier of social housing in New Zealand. In this context, a question which arises is whether the remedy of judicial review should follow Housing New Zealand into the deregulated environment. The “public ­functions” rationale which underlies judicial review means that the public or private nature of the body, whose actions are impugned, is largely irrelevant. As noted by Hammond J in ­Hamilton City Council v Waikato Electricity Authority [1994] 1 NZLR 741 at p 758, “[j]usticiability should be no less in the late twentieth century than it was in the earlier part of the century because there is a double effect involved: not only are rights affected in a world of ­corporatisation and privatisation but they are removed to a world (entirely ­privatised) beyond the reach of judicial review” (emphasis of Hammond J). Similarly, in Mercury Energy Limited v Electricity Corporation of NZ [1994] 2 NZLR 385, the Privy Council considered whether judicial review lay against ECNZ,

Lawson v Housing New Zealand—Judgment 113 a state-owned enterprise. It concluded that in principle, the decisions of ECNZ were amenable to judicial review. The Privy Council noted at p 388 that “[a] state-owned enterprise is a public body; its shares are held by ministers who are responsible to the House of ­Representatives and accountable to the electorate, the Corporation carries on its business in the interests of the public. Decisions made in the public interest by the Corporation, a body established by statute, may adversely affect the rights and liabilities of private ­individuals without affording them any redress.” This is exactly the case for Mrs Lawson. Although Housing New Zealand is not a state-owned enterprise under the State-Owned Enterprises Act 1986, there are strong parallels between the position of state-owned enterprises and Housing New Zealand. Both are companies incorporated under the (then) Companies Act 1955. The shares in state-owned enterprises and Housing New Zealand are held by Ministers responsible to ­Parliament. Under s 4 of the Housing Restructuring Act 1992, Housing New Zealand, like state-owned enterprises, is obliged to operate as a successful business that will assist in meeting the Crown’s social objectives. Decisions of Housing New Zealand, like those of state-owned enterprises, may significantly affect the rights of private individuals. Mrs Lawson’s right to adequate and affordable housing has been drastically affected by the decision of Housing New Zealand to increase her weekly rent. It matters not to Mrs Lawson that this decision was made by a private entity. She would be just as affected if it had been made by the Minister of Housing. Nevertheless, Housing New Zealand asserts that judicial review is not appropriate for its rent-setting process as this was a “purely commercial decision”. It argues that to ­subject it to judicial review on its rent-setting process would potentially put it at a competitive disadvantage by comparison with private landlords. If Housing New Zealand is required to charge less than market rent, then this would militate against its statutory obligation to be as successful as comparable businesses. It would distort the market by artificially increasing the demand of Housing New Zealand stock. In order to assess the amenability of the rent-setting process to judicial review, it is necessary to establish the legal basis for the decision to move to market rents. The move to market rents by Housing New Zealand could be described as a commercial decision made by it as an incorporated company. However, unlike a regular company, the actions of ­Housing New Zealand are also to be considered in light of its principal objective as set out in s 4 of the Housing Restructuring Act 1992, whereby it is required “to operate as a successful business that will assist in meeting the Crown’s social objectives by providing housing and related services.” It is also to be “as profitable and efficient as comparable businesses” (s 4(1)(a)) and “an organisation that exhibits a sense of social responsibility by having regard to the interests of the community in which it operates” (s 4(1)(b)). Housing New Zealand relies on a line of cases concerned with the contractual or commercial powers of entities with public functions. In the Mercury Energy case, the Privy Council held that a decision by ECNZ to terminate a contractual arrangement was not reviewable, and suggested at p 391 that “[i]t does not seem likely that a decision by a state-owned enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith.” However, in addition to these three narrow exceptions, a body may also be reviewable where the contractual power engages a public law responsibility. As noted in HWR Wade’s Administrative Law (5th ed, 1982) at p 356: “The powers of public authorities are … essentially different from those of private persons. A man making his will may, subject to any rights of his dependants, dispose

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of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do neither unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. Unfettered discretion is wholly inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good.” In Webster v Auckland Harbour Board [1983] NZLR 646, a Court of Appeal decision involving judicial review by a licensee of a local authority’s cancellation of a foreshore licence, Cooke J (as he then was) and Jeffries J, held at p 650 that: “Undoubtedly a public body which has, as here, lawfully entered into a contract is bound by it and has the same powers under it as any other contracting party. But in exercising the contractual powers it may also be restricted by its public law responsibilities. The result may be that a decision taken by the public body cannot be treated as purely in the realm of contract; it may be at the same time a decision governed to some extent by statute.” The rent-setting process of Housing New Zealand cannot properly be characterised as a simple contractual or commercial power. The statutory overlay of the Housing Restructuring Act 1992 transforms what would otherwise be a purely commercial decision into one which also involves public law responsibilities. Housing New Zealand is required to assist in meeting the Crown’s social objectives by providing housing and related services, and to be an organisation that exhibits a sense of social responsibility. This conclusion is supported when the social objectives are examined. They are set out in the letter of 4 June 1992 from the Minister of Housing to the Housing New Zealand Board, and include reference to the Government’s wish to “ensure that letting practices are fair, equitable and non-discriminatory” such that “potential tenants are not limited in their access to housing by barriers of race, gender, language, marital status, family composition, or source of income.” This is the language of public law responsibility, not private law commercial powers. It is also relevant to note here that Mrs Lawson’s situation involves individual human rights, namely the right to housing, found in art 11 of the International Covenant on ­Economic, Social and Cultural Rights (ICESCR). To borrow the words of Cooke and ­Jeffries JJ in Webster, in exercising its powers to set rent, Housing New Zealand is restricted by its “public law responsibilities” informed by public law values such as human rights. In this context, I therefore find that Housing New Zealand’s decision to move to market rents is reviewable. The decision was not simply a commercial decision. Rather, increasing the rent on state houses was a decision which Housing New Zealand was required to make in the wider context of its public law responsibilities.

Issue two: Did Housing New Zealand have (proper) regard to the Crown’s social objectives and the interests of the community? Mrs Lawson submits that in making the decision to move to market rents, Housing 45 New Zealand was obliged to have regard to the Crown’s social objectives and the interests of the community as required by s 4 of the Housing Restructuring Act 1992. Essentially, the social objectives and the interests of the community are mandatory relevant considerations. Mrs Lawson further submits that Housing New Zealand failed to have proper regard, or accord sufficient weight, to these considerations.

Lawson v Housing New Zealand—Judgment 115 It is clear that the social objectives and the interests of the community are mandatory relevant considerations in the rent-setting process. Section 4(1) of the Housing Restructuring Act 1992 sets out the principal objective of Housing New Zealand: 4. Principal objective of company—The principal objective of the company shall be to operate as a successful business that will assist in meeting the Crown’s social objectives by providing housing and related services … and to this end to be— (a) As profitable and efficient as comparable businesses that are not owned by the Crown; and (b) An organisation that exhibits a sense of social responsibility by having regard to the interests of the community in which it operates; and (c) A good employer.

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The process of identifying the social objectives of the Crown is surprisingly informal. ­ ection 15 of the Housing Restructuring Act 1992 requires the shareholding Ministers to 15 S give written notice to the Board of Housing New Zealand of the Crown’s social objectives before the commencement of each financial year. The Board is then required to include in its Statement of Corporate Intent objectives which will assist the Crown in meeting its social objectives. The Crown’s social objectives can be found in a 4 June 1992 letter from the Minister of Housing to the Housing New Zealand Board, which is in turn partly 20 reflected in Housing New Zealand’s Statement of Corporate Intent 1992/93. The social objectives for the 1993/94 year were fundamentally the same as for 1992/93. The salient points of the 4 June 1992 letter can be summarised as follows: 1. 2. 3. 4. 5. 6. 7.

8.

The first priority was to assist those on low incomes to obtain adequate and ­affordable accommodation. Housing New Zealand’s business was to be directed primarily at the accommodation of low income New Zealanders. If there is excessive demand for its accommodation in any location, priority could be given to those in emergency accommodation or accommodation detrimental to health or well-being. Existing tenants who sought cheaper accommodation should be given priority in the reallocation. For a period full market rents were not to be charged notwithstanding the effect on the company’s performance. Housing for community purposes was to continue. Access to housing was not to be limited by personal factors including income. The rental market—including that for Housing New Zealand—was to be fair, equitable and non-discriminatory. Rent collection and terminations were to be in accordance with the best practice in the private sector. Social responsibility was to be exhibited through high standards of services for tenants and the community, the environment and active cooperation with those in the housing sector.

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It is clear Housing New Zealand did have regard to the Crown’s social objectives and the interests of the community. At a strategic level, cl 10 of the Statement of Corporate 45 Intent 1992/93 sets out “steps to assist the Crown’s social objectives.” In terms of the rentsetting process itself, the evidence of Sir George Chapman, Chair of the Housing New ­ Zealand Board, illustrates the efforts taken by Housing New Zealand to meet the Crown’s social objectives. To give just one example, on 3 June 1993, Housing

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New Zealand wrote to the Prime Minister noting its concern that 45 per cent of tenants faced a net increase in their rent following the third round of rent increases. The letter notes that this would include approximately 9,000 people—many of whom were female ­pensioners—whose ­accommodation could be let to other tenants at full market rent, but as noted by Housing New Zealand this would “cause considerable individual distress and extensive public criticism.” As to whether appropriate weight was given by Housing New Zealand to the Crown’s social objectives and the interests of the community, it is usually not the courts’ role to assess the weight given to relevant considerations as this is a matter for the ­decision-maker. However, in Daganayasi v Minister of Immigration [1980] 2 NZLR 130 at p 149, Cooke J suggested judicial review varies depending on the circumstances. More recently, in Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641 at p 653, Cooke P noted that “[a]t times it becomes necessary to give especial weight to human and civil rights including class or group rights … and of course in New Zealand race rights.” Context is therefore important, and in this case, I am mindful that Mrs Lawson’s human right to housing is at stake. The obligation on Housing New Zealand to determine how much weight should be given to the Crown’s social objectives and the interests of the community was undoubtedly a delicate assessment given the unsatisfactory dissonance reflected in Housing New Zealand’s principal objective of operating as a successful business on the one hand while also meeting the Crown’s social objectives on the other. I am persuaded however that Housing New Zealand did take this obligation seriously. The evidence shows Housing New Zealand did consider the Crown’s social objectives and the interests of the community, and that appropriate weight was given by Housing New Zealand to the social objectives.

Issue three: Are the actions of the Ministers of Housing and Finance amenable to judicial review? Mrs Lawson asserts that the actions of the Ministers of Housing and Finance, in determining the Crown’s social objectives for incorporation into the Housing New ­Zealand Statement of Corporate Intent or in failing to alter the Statement so as to ensure that rents 30 charged by Housing New Zealand were affordable, are also amenable to review. These actions involved the statutory powers of the Ministers under ss 14 and 15 of the Housing Restructuring Act 1992. Sections 15(2) and (5) are the most pertinent, and provide so far as is relevant: 35

15. Statement of corporate intent— …

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(2) For the purposes of preparing the draft statement of corporate intent, the ­shareholding Ministers, shall … give written notice to the board of the Crown’s social objectives in relation to the provision of housing and related services. …

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(5) The board shall consider any comments on the draft statement of corporate intent that are made to it … by the shareholding Ministers …

The Ministers argue that the impugned actions are matters of Government policy at the highest level and are not properly the subject of judicial review. It is certainly the case that the more a challenged decision lies in the macro-political field, the less intrusive will be the courts’ review. As stated by Richardson J in CREEDNZ Inc v Attorney-General 50 [1981] 1 NZLR 172 at pp 197–198:

Lawson v Housing New Zealand—Judgment 117 “The willingness of the Courts to interfere with the exercise of discretionary decisions must be affected by the nature and subject-matter of the decision in question and by consideration of the constitutional role of the body entrusted by statute with the exercise of the power. Thus the larger the policy content and the more the d­ ecision-making is within the customary sphere of elected representatives the less well-equipped the Courts are to weigh the considerations involved and the less inclined they must be to intervene.” However, it is also the case that the breadth of judicial review in New Zealand has widened in the years since the CREEDNZ decision, with courts being increasingly willing to review exercises of power which in substance are public or have important public consequences. Thus, a prerogative power can now be reviewed (Burt v Governor-General [1992] 3 NZLR 672 at p 678), an incorporated sporting body can be reviewed (Finnigan v NZRFU [1985] 2 NZLR 159 at p 181) and, as noted above, decisions of corporatised or privatised entities such as Housing New Zealand can be reviewed (Mercury Energy). While the setting of the social objectives for state housing clearly involved ­matters of political judgement, and so could be argued as not justiciable by the courts, the social ­objectives also had the potential to have significant impact on the lives of thousands of New Z ­ ealanders like Mrs Lawson. Significantly, these were not decisions about all ­housing in New Zealand—which might well be characterised as non-justiciable. Rather, they were decisions which affected 70,000 households comprising particularly vulnerable New ­Zealanders including those of lower socio-economic status, the elderly, those with a psychiatric disability and a disproportionately high number of women and children. (The Iwi Transition Agency separately runs lending and renting programmes for 11,500 Maori and Pacific families, and has also been tasked with phasing in market rents.) The comparatively marginalised and powerless position of people like Mrs Lawson who were severely impacted by the Ministers’ decisions argues in favour of justiciability. Finally, if decisions are amenable to review, the appropriate role for the court is ­primarily to consider the decision-making process not the merits of the decision itself. This mitigates any risk the court may traipse into unchartered “political” waters. I therefore find the actions of the Ministers of Housing and Finance are amenable to review.

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Issue four: Did the Ministers fail to have (proper) regard to New Zealand’s international ­obligations including the right to an adequate standard of living? Mrs Lawson argues that the Ministers, in determining the Crown’s social objectives for the Statement of Corporate Intent, or in failing to alter that Statement to ensure rents 35 charged by Housing New Zealand are affordable, have failed to have proper regard to New Zealand’s international obligations under the Universal Declaration of Human Rights 1948 (UDHR), ICESCR and the United Nations Convention on the Rights of the Child 1989 (UNCROC). The key obligation is New Zealand’s obligation to realise the right of 40 everyone to an adequate standard of living. The UDHR heralded the development of the post-World War II human rights movement, and is the antecedent of later treaties such as ICESCR and UNCROC. Some commentators have argued that the UDHR is now customary international law, in which case it would be binding as part of New Zealand’s common law. Although that is an attractive argument, it is currently lacking in judicial support, and in any event, the right to an 45 adequate standard of living is protected by ICESCR, which was ratified by New Zealand in 1978. UNCROC appears to be of limited relevance to Mrs Lawson’s current situation as, although she raised her own three children at 27 Oranga Ave, there are no longer any children under 18 living there. 50

118  Natalie Baird Article 11(1) of ICESCR provides:

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“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

In 1991 the Committee on Economic, Social and Cultural Rights issued “General Comment No 4 on the Right to Adequate Housing.” The General Comment explains how the 10 Committee itself, as the international body charged with overseeing implementation of ICESCR, interprets the right. Adequate housing is defined in the General Comment as including seven factors—legal security of tenure, availability of services, affordability, habitability, accessibility, location and cultural adequacy. Of particular relevance to these proceedings is the affordability factor, described as follows: 15 “Personal or household financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. Steps should be taken by States parties to ensure that the percentage of housing related costs is, in general, commensurate with income levels. States parties should establish housing subsidies for those unable to obtain affordable housing, as 20 well as forms and levels of housing finance which adequately reflect housing needs. In accordance with the principle of affordability, tenants should be protected by appropriate means against unreasonable rent levels or rent increases. …” The Ministers argue there was no obligation on them to take any of the international 25 instruments into account in implementing the change to market rentals but that, if they were required to do so, they complied with that obligation. The first submission of the Ministers—that they were not obliged to take ICESCR into account—is an extraordinary submission in light of the Court of Appeal’s recent decision in Tavita v Minister of Immigration [1994] 2 NZLR 247. In Tavita, the Crown had similarly 30 argued that the Minister was entitled to ignore the ICCPR and UNCROC when considering an appeal against the granting of a removal warrant. The Court of Appeal at p 266 described this as an “unattractive argument … apparently implying that New Zealand’s adherence to the international instruments has been at least partly window-dressing.” Further, “[t]he law as to the bearing on domestic law of international human rights and instruments declaring 35 them is undergoing change.” Although the subsequent and very recent decisions of the Court of Appeal in Puli’uvea v Removal Review Authority [1996] 3 NZLR 538 and Rajan v Minister of Immigration [1996] 3 NZLR 543 perhaps suggest a more moderate approach, in neither of these cases, unlike that before me, did the Court have the benefit of full submissions on the relevance of international obligations. Drawing on Tavita, and noting 40 also the recent High Court decision in Ankers v Attorney-General [1995] 2 NZLR 595 at pp 600–602, I find not only that it would be unwise for Ministers to ignore international human rights obligations in the context of administrative decision-making, but further that ICESCR was an implied mandatory relevant consideration for the Ministers of Housing and Finance in exercising their powers under the Housing Restructuring Act 1992. 45 The second submission of the Ministers—that they had in fact taken ICESCR into account—requires closer consideration. The Ministers did not try to argue that they took the express terms of ICESCR into account. Instead, they say that the aims of ICESCR are comparable to the principles which in fact underpinned the housing reforms. The Ministers further argue that the housing policy of the Government since 1990 does not appear to run 50

Lawson v Housing New Zealand—Judgment 119 counter to New Zealand’s obligations under ICESCR in light of the overall objective of a well-housed population, continuation of the state housing rental stock and other measures such as facilitating transfers to more appropriate accommodation and the accommodation supplement. There are two flaws in the Ministers’ submission. First, a coincidental similarity or 5 overlap between the principles underpinning ICESCR and the principles underpinning the housing reforms is insufficient to satisfy the requirement to consider ICESCR itself as an implied mandatory relevant consideration. While there is reference to the right to housing in the National Party manifesto, the 1991 Budget, the Yellow Book, and other evidence, it appears that no consideration was given to New Zealand’s obligations under ICESCR. 10 Diverging from Ankers, where at p 601 the Court required evidence of failure to take into account the international obligations, I find instead that what is required, but was not presented, is evidence that ICESCR was separately and specifically considered by the Ministers. Secondly, it is not the role of this Court to assess substantive compliance of the housing reforms with ICESCR, and so the Ministers’ assertion that the reforms did not 15 breach ICESCR is of limited relevance. In any event, it is at the very least questionable whether the housing reforms meet New Zealand’s obligation to “progressively realise” the Covenant rights as required by art 2(1) ICESCR. Rather, there is evidence that the Government knew the move to market rents would instead result in a deterioration in the living standards of many Housing New Zealand tenants such as Mrs Lawson. 20 Accordingly, I find the Ministers failed to have regard to New Zealand’s international obligations under ICESCR when exercising their statutory powers under s 15 of the ­Housing Restructuring Act 1992. Issue five: Did Housing New Zealand and the Ministers breach Mrs Lawson’s right to life 25 as protected by s 8 of the New Zealand Bill of Rights Act 1990? Mrs Lawson submits Housing New Zealand’s conduct in charging market rents ­without proper regard to their affordability and impact on living standards is unlawful and ­constitutes a breach of s 8 of the New Zealand Bill of Rights Act 1990. As against the Ministers, Mrs Lawson submits that they failed to have proper regard to her rights under 30 s 8. Section 8 provides: 8. Right not to be deprived of life—No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.

35 Mrs Lawson submits the move to market rents will deprive her of adequate and affordable shelter and as such is in breach of s 8. This submission depends on a liberal interpretation of “life” and, indeed, “deprived.” Mrs Lawson submits that s 8 should be interpreted to include not only the right not to be deprived of physical existence, but also the right not to be deprived of things necessary to support and ensure that existence, such as adequate 40 and affordable housing. Mrs Lawson relies on the preamble to the ICCPR, referred to in the Long Title to the Bill of Rights which provides that “the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights”. She also refers to Canadian jurisprudence under 45 s 7 of the Canadian Charter of Rights and Freedoms which provides: 7. Life, liberty and security of person—Every one has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

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In Singh v Minister of Employment and Immigration [1985] 1 SCR 177, Wilson J stated at p 205 that “[c]ertainly it is true that the concepts of the right to life, the right to liberty, and the right to security of the person are capable of a broad range of meaning.” She noted further at p 207 that there was considerable academic support for an expansive interpretation of the right to security of the person as including physical protection and the economic and social factors necessary for such. Not mentioned by Mrs Lawson, but potentially also of assistance to her argument, is a line of cases from the Indian Supreme Court interpreting the right to life in art 21 of the Indian Constitution 1949 as the right to a certain quality of life. See, for example Tellis v Bombay Municipal Corporation AIR (1987) SC 108 (livelihood), MC Mehta v Union of India AIR (1987) 965 (pollution) and Subash Kumar v Bihar AIR (1991) SC 420 (pollution). While I have sympathy with Mrs Lawson’s argument, not least because it accords with the underlying human rights principle of dignity (see art 1 UDHR), I am ultimately constrained by the wording of s 8 of the Bill of Rights. Section 8 is more narrowly framed than s 7 of the Canadian Charter. The debate in Canada as to whether s 7 embraces social and economic factors centres around the references in s 7, not found in s 8 of the Bill of Rights, to the rights to liberty and security of the person (see Hogg Constitutional Law of Canada 3rd ed, 1992, at pp 1026–1030). The Indian cases, while modelling the liberal approach sought by Mrs Lawson, are not persuasive authority in New Zealand. In addition, the legislative history of the Bill of Rights does not assist Mrs Lawson. The 1985 White Paper on the Bill of Rights did not include economic, social and cultural rights, noting that such rights were best left to “parliaments and governments.” However, in its Final Report to Parliament ([1988] AJHR 8C at pp 3–4), the Justice and Law Reform Committee did recommend that such rights be included in the Bill of Rights. This suggestion was not however taken up by Parliament. To now include protection for these rights under the umbrella of the right to life in s 8 would run counter to this legislative history. Nevertheless, this is an area that cries out for legislative reform, a fact that has been remarked upon at the international level. In 1994, the Committee on Economic, Social and Cultural Rights, noted in its Concluding Observations on New Zealand that it was of concern that the Bill of Rights made no reference to economic, social and cultural rights (E/C.12/1993/13, 4 January 1994, para 12). Accordingly, I find it would be an unduly strained interpretation of s 8 to conclude that the right not to be deprived of life encompasses a right not to be charged market rent. It cannot be said that the actions of Housing New Zealand or the Ministers were such as to “deprive” Mrs Lawson of her right to “life”, although they undoubtedly had an adverse impact on the quality of her life.

Issue six: Did the Ministers and Housing New Zealand breach Mrs Lawson’s legitimate ­expectation that she would not be forced out of her home if she was unable to afford the 40 new market rental? Mrs Lawson asserts she had a legitimate expectation that she would not be evicted if she was unable to afford market rents, but that this expectation was breached by the Ministers (and through them Housing New Zealand) when they determined the Crown’s social objectives for incorporation into Housing New Zealand’s Statement of Corpo45 rate Intent or failed to alter that Statement to ensure the realisation of Mrs Lawson’s expectation. In essence, Mrs Lawson asserts an expectation of a substantive outcome, i.e. she would not be forced out of her home of nearly 50 years if unable to afford the new market rent. Mrs Lawson relies on various statements in the Yellow Book, a policy statement 50 issued by the Minister of Housing entitled “Housing and accommodation: ­Accommodation

Lawson v Housing New Zealand—Judgment 121 a­ ssistance: A statement of government policy on housing and accommodation” (30 July 1991). One such statement noted: “While State house tenants will pay more for their accommodation in the future, no one will be forced to move. Within the parameters of the new regime, every effort and encouragement will be made to allow tenants to make their own choices about their accommodation preferences.” The Ministers and Housing New Zealand argue that the statements in the Yellow Book cannot be the source of any expectation because there is no evidence Mrs Lawson knew of the Yellow Book, nor relied on the statements in it. However, knowledge and reliance are not clearly established as elements in a claim for breach of legitimate expectation (de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed), 1995 at pp 426–428). In the recent case of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (HCA), the majority held that it was not necessary that the party asserting the expectation should personally entertain it or have knowledge of it. This approach applies equally to the present case. A stronger basis for Mrs Lawson’s expectation is in any event found in the length of her tenancy at 27 Oranga Ave. A legitimate expectation may arise from a regular practice giving rise to a reasonable implication that the practice will continue, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at p 415 per Lord Roskill. Nearly 50 years’ tenancy must surely involve a regular practice or course of conduct by the ­government, giving rise to an implication that it would continue, indeed that 27 Oranga Ave would be Mrs Lawson’s home “to the grave” (to draw on the wording of the policy of the 1935–1949 Government which first introduced New Zealand’s state housing scheme). As to the issue of whether there can be a legitimate expectation as to a particular outcome, there is force in the submission for Housing New Zealand and the Ministers that the doctrine of legitimate expectation cannot be invoked as a challenge to the substance or merits of a decision. As noted by Brennan J in Attorney-General (NSW) v Quin (1990) 93 ALR 1 at p 24:

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30 “The question can be put quite starkly: when an administrative power is conferred by the legislature on the executive and its lawful exercise is apt to disappoint the expectations of an individual, what is the jurisdiction of the Courts to protect that individual’s legitimate expectations against adverse exercises of the power? I have no doubt that the answer is: None.” 35 Instead, legitimate expectation is commonly said to entail only an expectation of procedural fairness, of a right to be heard. As noted by Taylor (in Judicial Review (1991) at para 13.12), “when a decision is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, … the person is entitled to know the case 40 sought to be made against him and to be given an opportunity of replying to it.” Nevertheless, in a number of recent cases, the courts have gone beyond a simple review of the process and considered the overall fairness of a decision. As noted by Cooke J in Daganayasi at p 149, “[f]airness need not be treated as confined to procedural matters … one may ask whether she has been treated fairly.” Further, in the Thames Valley case, Cooke P noted at p 652 that “the quality of an administrative decision as well as the proce- 45 dure is open to a degree of review.” Cooke P cited the decision of R v Secretary of State for the Home Department, ex parte Ruddock [1987] 2 All ER 518, where Taylor J held that the doctrine of legitimate expectation may impose a duty to act fairly—otherwise than simply in the procedural sense of according a hearing. 50

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In the case of Mrs Lawson, I have some reservations about whether Housing New ­Zealand and the Ministers satisfied this duty to act fairly. In his affidavit, the former ­Minister of Housing, Hon Mr Luxton, described state house tenants such as Mrs Lawson as being in a “privileged position” before the reforms, in contrast to low income tenants in the private rental market. This view is strongly countered by the evidence of Mrs Lawson on the difficulty of “making ends meet” even before the reforms. In any case, as a result of the reforms, there can be little doubt that the change from the long-standing policy of the state letting houses at less than market rent to people with limited income, has had an adverse effect on Mrs Lawson’s financial position and others similarly situated. People organise their financial affairs on the basis of an expected level of income and expenditure. A marked increase in the latter, unaccompanied by a corresponding increase in the former, results in hardship. Although there have been various mitigating measures including the revamped accommodation supplement, the staggering of rent increases over a number of years, and the “indulgence” of not seeking evictions of Mrs Lawson and other SHAC rent strikers, the stark reality is that Mrs Lawson simply cannot afford the rent increase. No evidence was provided as to where Mrs and Mr Lawson will live if forced to leave 27 Oranga Ave. There was however evidence of a shortage of one bedroom properties (to which one assumes they would be required to move) in both Housing New Zealand and the private rental market. All of this suggests that the quality of the decisions by the Ministers and Housing New ­Zealand is lacking—at the very least in compassion. The doctrine of legitimate expectation is based on an underlying relationship of trust and confidence between government and citizens. In this case, the relationship between Mrs Lawson and the government was based on nearly 50 years of tenancy history. The decisions of Housing New Zealand and the Ministers are a violation of that long-standing relationship of trust. Accordingly, I find that Mrs Lawson’s legitimate expectation that she would not be forced out of her home if she was unable to afford the new market rental was breached by the decisions of the Ministers and Housing New Zealand. Summary I summarise my conclusion on each of the six issues as follows: 1. 2.

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3. 4. 5.

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The decision of Housing New Zealand to move to market rents is amenable to review. Housing New Zealand did have proper regard to the Crown’s social objectives and the interests of the community in its rent-setting process. The actions of the Ministers of Housing and Finance are amenable to review. The Ministers failed to have proper regard to New Zealand’s international obligations under ICESCR. The Ministers and Housing New Zealand did not breach Mrs Lawson’s right to life as protected by s 8 of the New Zealand Bill of Rights Act 1990. The Ministers and Housing New Zealand breached Mrs Lawson’s legitimate ­expectation that she would not be forced out of her home if she was unable to afford the new market rental.

Accordingly, the Ministers and Housing New Zealand are directed to reconsider their decisions in light of the reasoning in this judgment. In Mrs Lawson’s case, that reconsid45 eration should also take into account the lengthy tenant/landlord relationship between her and the government (continued by Housing New Zealand as the government’s successor) for her home at 27 Oranga Ave. 50

Application allowed.

Medical Decisions

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8 Commentary on Seales v Attorney General The Potential Interface of Gender and Vulnerability in Legal Contexts KATE DIESFELD

The Original Decision Ms Lecretia Seales was an accomplished and articulate lawyer of 42 years of age who wanted the opportunity to receive medical assistance to end her life because she was dying from a malignant brain tumour. She wished to be the arbiter of her destiny, to the extent possible, and she wished to avoid weeks or months of potentially agonising suffering.1 In New Zealand, Ms Seales’ own actions would not constitute a crime because it is not an offence to attempt to end one’s own life. However, her doctor ran the risk of being criminally prosecuted if she aided Ms Seales. In May 2015, Ms Seales attempted to obtain legal certainty for her doctor by asking the High Court to find that a doctor who provides aid in dying at the request of a terminally ill, competent individual would not be criminally liable.2 She sought a declaration that her doctor would not commit either murder or manslaughter under s 160(2)(a) and (3) of the Crimes Act 1961 (NZ) if she administered a lethal dose of medication for the purpose of ending Ms Seales’ life. Also, she sought a declaration that her doctor would not be assisting her to commit suicide, which is prohibited by s 179(b) of the Crimes Act. These are referred to as the criminal law declarations. Alternatively, if the Court could not make the criminal law declarations, Ms Seales sought declarations that in preventing her from obtaining aid in dying, the law is inconsistent with the New Zealand Bill of Rights Act 1990 (the Bill of Rights). She requested declarations that these offences were inconsistent with s 8 (the right not to be deprived of life) and s 9 (the right not to be subjected to torture or cruel treatment). These are referred to as the Bill of Rights declarations. Collins J affirmed that the Crimes Act’s prohibitions apply to a doctor who supplies a patient with a fatal drug, with the intention that the patient would use it to end her life, 1  2 

See lecretia.org/you-can-help/seales-v-attorney-general. Seales v Attorney-General [2015] NZHC 1239, [2015] 3 NZLR 556.

126  Kate Diesfeld and if the patient did so. He referred to the decriminalisation of suicide in New Zealand in 1961. His Honour rejected Ms Seales’ argument that the legislative changes meant that Parliament placed respect for personal autonomy over the sanctity of human life.3 One of Parliament’s objectives in decriminalising suicide but not decriminalising euthanasia was to protect the lives of all who are vulnerable. He concluded that Ms Seales’ decision would qualify as ‘suicide’ as her death would be intentional, voluntary and caused by the drug.4 In Collin J’s view the doctor would be exposed to prosecution under s 179 for aiding and abetting suicide if she supplied Ms Seales with a fatal drug, with the intention that Ms Seales would use it to end her own life, and if Ms Seales did so.5 Collins J examined whether this outcome is consistent with s 8 (the right to life)6 and s 9 (the right not to be subject to torture or cruel treatment) of the Bill of Rights in Ms Seales’ circumstances. Ms Seales argued that s 8 is engaged when the law or actions of the state result in an increased risk of death on an individual. She argued that if her doctor could not lawfully aid her, she might be forced to take her life prematurely, for fear that that she would be incapable of doing so when the suffering became intolerable.7 This argument was accepted by the Supreme Court of Canada in Carter v Canada (Attorney-General),8 which found that the Canadian prohibition against assisting suicide would cause some terminally ill people to end their lives sooner than they otherwise would choose to. The Court further found that it was not necessary to impose this prohibition on competent, consenting, terminally ill individuals in an effort more generally to protect the lives of other vulnerable people. Collins J accepted that a prohibition on aid in dying may have the same effect in New Zealand of prematurely ending vulnerable people’s lives. The right to not be deprived of life was engaged but not breached in her case.9 In Ms Seales’ circumstances, the interference with her right to life was established. However, the Bill of Rights does not guarantee that the state will never deprive a person of life. Rather, s 8 guarantees that it will only do so on grounds that are established by law and consistent with the principles of fundamental justice. In contrasting the Canadian and New Zealand approaches, he concluded that while Canada’s legislation is more narrowly concerned with protecting the lives of ­vulnerable individuals, New Zealand’s is aimed more broadly at protecting the lives of all persons. Also, he found that the Crimes Act s 160(2)(a) and s 179(b) were not grossly disproportionate and reflect societal norms in New Zealand.10 Accordingly, his Honour held that it is not inconsistent with the principles of fundamental justice for New Zealand’s prohibition to apply to individuals in Ms Seales’ circumstances. The issue under s 9 was whether,11 by depriving Ms Seales of the opportunity to alleviate her suffering, the state was subjecting her to cruel, degrading or disproportionately severe 3 

ibid [132]. ibid [144]. ibid [147]. 6  NZBORA 1990, s 8 reads ‘No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.’ 7  Seales (n 2) [165]. 8  Carter v Canada (Attorney-General) 2015 SCC 5, [2015] 1 SCR 331. 9  Seales (n 2) [12] and [166]. 10  ibid [190] and [191]. 11  NZBORA 1990, s 9 reads ‘Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.’ 4  5 

Seales v Attorney-General—Commentary 127 treatment. Collins J found that the state’s prohibition on receiving aid in dying did not subject Ms Seales to ‘treatment’ because her circumstances were the direct consequence of her cancer, not her treatment.12 That is, Ms Seales’ treatment was designed to alleviate, to the extent possible, the worst effects of her tumour.13 His Honour was not persuaded that s 9 was engaged when the criminal law prohibits culpable homicide and assisting suicide, even when the legal effect is that people in Ms Seales’ position will continue to suffer from their conditions.14 Collins J noted that a legal change such as lifting the prohibition on aid in dying would require legislative reform:15 Although Ms Seales has not obtained the outcomes she sought, she has selflessly provided a forum to clarify important aspects of New Zealand law. The complex legal, philosophical, moral and clinical issues raised by Ms Seales’ proceedings can only be addressed by Parliament passing legislation to amend the effect of the Crimes Act.

Lecretia Seales passed away from natural causes on 5 June 2015 and the decision was ­publicly released later that day.16 On 18 November 2016, the Authorised Dying Bill was tabled before the Health Select Committee in Parliament by Professor Mark ­Henaghan and Louisa Wall.17 The Bill would apply to applicants: with a diagnosed terminal illness with a reasonable expectation of death within 12 months; who provide voluntary and informed consent; have capacity to make the decision; and are aged 18 years or older. In contrast to previous Bills that were cited in the Collins J judgment,18 an ethics committee would screen applicants and, with the applicants, determine the details of the authorised dying process. Ms Seales’ case attracted substantial media comment19 and inspired numerous academic publications.20 Her husband’s book about Ms Seales’ journey21 was described as a ‘portrayal of her love for him and her courage in adversity’ and a ‘very special contribution to the human face of end-of-life law reform’.22 In undertaking a feminist judgment and commentary, we are mindful of honouring both Ms Seales’ memory and her family. 12 

Seales (n 2) [205]. ibid [206]. 14  ibid [207]. 15  ibid [211]. 16  M Vickers, Lecretia’s Choice: A Story of Love, Death and the Law (Melbourne, Text Publishing, 2016). 17  Authorised Dying Bill tabled before the Health Select Committee by Mark Henaghan and Louisa Wall on 18 November 2016. 18  Seales (n 2) [211]. Death with Dignity Bill 1995, (00-1) (Members Bill) introduced by M Laws MP on 2 April 1995; Death with Dignity Bill 2003 (37-1) (Members Bill) introduced by P Brown MP on 6 March 2003 and End of Life Choice Bill (Members Bill) placed into the Private Members Bill ballot by M Street MP in 2013 and withdrawn from the ballot in October 2013. 19  See, eg, N Jones, ‘Euthanasia: Should We Be Able to Choose When to Die?’ New Zealand Herald (Auckland, 24 January 2016); P Taylor, ‘A Voice for the Dying’, Weekend Herald (Auckland, 19 November 2016). 20  See, eg, A Geddis, ‘End-of-Life Choice in New Zealand’s Parliament and Courts’ (2015) 26 Public Law Review 237; G Gillett, ‘Lecretia Seales and Aid in Dying in New Zealand’ (2015) 23 Journal of Law and Medicine 308; B Midson, ‘They Shoot Horses, Don’t They?’ (2015) July New Zealand Law Journal 207; I Freckelton, ‘Medically Assisted Suicide: Recent Jurisprudence and the Challenges for Legal Reform’ (2016) 23 Journal of Law and Medicine 735; C Gavaghan and M King, ‘Can Facilitated Aid in Dying be Permitted by “Double Effect”? Some Reflections from a Recent New Zealand Case’ (2016) 42 Journal of Medical Ethics 361. 21 Vickers, Lecretia’s Choice (n 16). 22  I Freckelton, ‘Lecretia’s Choice: A Story of Love, Death and the Law (Book Review)’ (2016) 24 Journal of Law and Medicine 516. 13 

128  Kate Diesfeld

The Feminist Judgment A ‘conventional’ or predictable feminist judgment might emphasise the fundamental ­freedom of competent women to control their bodily integrity. For example, the rationale might focus on the state’s obligation to promote and protect a woman’s individual autonomy. There is certainly a foundation for this type of approach, with Ms Seales stating in her first affidavit: ‘If my death is manageable I should be the one to manage it’.23 Drawing upon feminist theory, a feminist judgment could focus primarily on the goals that Ms Seales expressed: ‘I want to live as long as I can but I want to have a voice in my death and be able to say “enough”’.24 However, Manning J’s feminist judgment takes account of a broader phenomenon. Manning J takes the view that this case is of sufficient public importance to warrant a full bench of the High Court and delivered a concurring feminist judgment. She sensitively expresses the nature of Ms Seales’ condition, existential suffering and priorities. Her judgment takes a wide view of the social forces that may compel women to request assisted dying and contemplates the impact upon our ageing society. Central to the feminist analysis is her Honour’s detailed consideration of women’s vulnerability and its impact upon truly autonomous decision-making. Manning J reiterates that Ms Seales is not vulnerable in a legal sense due to untreatable pain, coercion or depression. Regarding capacity to provide fully voluntary consent, she expresses the view that Ms Seales may be at one end of a spectrum, as a non-vulnerable person. But people at the other end require special consideration:25 Such persons may maintain vociferously that they are fully competent and their decisions completely voluntary, but they are wrong. It is not always easy for people to assess themselves objectively, especially given the extreme medical circumstances in which they are placed, and supportive medical evidence will always be required.

With one exception, the feminist judgment concurs with the decision and reasoning of Collins J. Manning J agrees that if Ms Seales’ doctor were to provide her with the means to end her own life, the doctor would be at risk of prosecution for murder or manslaughter, or for aiding and abetting suicide, and thus the criminal law declarations could not be made. She also agrees that the Bill of Rights declarations could not be made. Like Collins J, she holds the view that although s 9 of the Bill of Rights (the right not to be subjected to torture or cruel treatment) was not breached, and that the right not to be deprived of life (s 8) is prima facie limited by the s 179 offence (aiding and abetting suicide) because the offence prevented Ms Seales from having the ability to choose the time of her death, thereby potentially forcing her to take her own life at an earlier time than she might otherwise choose. Like Collins J, Manning J holds that the offence falls within the exception to s 8 because ‘the limit it places on her right to life is in accordance with the principles of fundamental justice’.26 Drawing on Canadian constitutional law,27 she approaches the exception to s 8 by 23 

Seales (n 2) [29].

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Manning J, this collection, [217]. ibid [214]. Carter (n 8).

24 ibid. 26  27 

Seales v Attorney-General—Commentary 129 asking whether the law is arbitrary, overbroad or grossly disproportionate.28 She concludes that the law is not arbitrary because there is a rational connection between the purpose of the criminal prohibition on assisting suicide and the law itself. In relation to overbreadth, Collins J had discussed the government’s mandate to protect society’s vulnerable members. He referred to Ms Seales’ self-assessment and her doctor’s view that she was rational, fully aware of her circumstances and not depressed.29 The feminist judge notes that this is not a purely factual inquiry, but that it is also evaluative.30 She concludes that there is no reliable method for doctors to assess vulnerability. Consequently, Manning J does not find the law over broad:31 Because doctors are not capable of detecting the vulnerable with sufficient accuracy and distinguishing them from those who are not, it is necessary to target all in order to protect those who are vulnerable from acceding to pressure, internal or external, to cut short their lives.

Turning to gross disproportionality, Manning J again focuses her reasoning on vulnerability. She recognises the grave and cruel impact that s 179 had on Ms Seales’ right to life and that ‘confronting this consequence is certainly troubling’.32 Having adopted a narrow interpretation of the statutory purpose of s 179 (to protect the vulnerable, rather than to protect all human life as per Collins J), Manning J reasons that anything less than a total prohibition would expose other vulnerable people to risk of abuse or error: For me, this case is in essence about whether the risks to vulnerable people associated with assisted dying from overt or covert pressure to end their lives are outweighed by the benefits of permitting autonomous, competent, truly voluntary and informed people suffering from a terminal medical condition, to have assistance to terminate their lives.33

She decides that the offence is not grossly disproportionate, and that s 8 of the Bill of Rights is not breached.

Ms Seales’ Mental State As feminist legal scholars, we imagine a legal system with ‘reflective judges’ sensitive to questions of gender and aware of the implications of their interventions’.34 Both Collins and Manning JJ’s judgments cite expert evidence regarding Ms Seales’ personality. Collins J referred to expert testimony on this matter:35 Ms Seales’ desire to control the final stages of her death is a common trait amongst those in society who consider themselves to be successful and driven. This trait was explained by Professor Owens, who said that people with Ms Seales’ personality traits “frequently find the effects of an illness [of the kind suffered by Ms Seales] particularly intolerable because of the loss of autonomy and inability to manage their lives is directly contrary to the things they value”. 28 

Manning (n 25) [235]. Seales (n 2) [81]. 30  Manning (n 25) [237]. 31 ibid. 32  ibid [239]. 33 ibid. 34 M Davies, ‘Feminism and the Idea of Law’ (2011) 1 feminists@law journals.kent.ac.uk/index.php/ feministsatlaw/article/view/9/66. 35  Seales (n 2) [54]. 29 

130  Kate Diesfeld The scrutiny of Ms Seales’ personality may have unintended but significant repercussions for women. Ms Seales’ mental status was not at issue; there was no claim that she was mentally ill or disordered. Yet her personality was the subject of discussion. In my view, the examination of Ms Seales’ ‘personality traits’ may tend to pathologise her. Portrayal of women’s medical decisions as irrational, infantile, neurotic or hysterical is well documented in feminist scholarship.36 Interestingly, Professor Owens, who specialises in the ‘psychology of end of life care’, proffered evidence in support of Ms Seales’ case. Yet his evidence suggests that but for her fortitude and assertive personality, Ms Seales would not have posed this legal challenge. By implication, more ‘reasonable’ people would not be distressed by their lack of control during a terminal illness. Presumably, those people would not have zealously posed this legal challenge. Could this imply that ordinary, reasonable people would (and should) not seek assisted suicide? The judicial analysis of Ms Seales’ personality fosters more questions. Who will stage a legal challenge to the status quo, if not a confident self-advocate? Does the Court apply this type of scrutiny to all applicants, regardless of gender? These questions guide us to a further reflection upon the feminist judgment.

Vulnerability Manning J’s feminist contribution emphasises the diverse forms of coercion that may bear down upon women, particularly as they age and experience declining health. This reasoning ‘challenges theory that women’s decisions for an assisted death are always the unambiguous expression of a truly autonomous will’.37 The premise is that women may choose a premature death due to a range of influences, many related to gender. If assisted dying is normalised, it may rapidly be transformed into an obligation. Manning J contrasts the experience of women and men. Women are more likely to live longer and develop disease and disabling conditions later in life. Given that they are likely to outlive their partners, they are also likely to live alone or die in residential care. Many women assume a range of caring roles, tending to define themselves fundamentally through the needs of others. The feminist judgment closely examines the forces that may influence women’s decisions, when they face a future of dependence. Given that many women have direct experience as carers, they may appreciate the hardships that their future carers may face and want to avert it. (A corollary issue that was not traversed in the feminist judgment is that women may have observed, and want to avert, the toll associated with being a dependent.) Women may experience multiple coercive influences that they do not articulate, or even recognise.38 These forces are portrayed as pervasive and (in my reading of the feminist

36  See, eg, E Fegan and P Fennell, ‘Feminist Perspectives on Mental Health Law’ in S Sheldon and M Thomson (eds), Feminist Perspectives on Health Care Law (London, Cavendish, 1998) 87; A Furedi, ‘Wrong But the Right Thing to Do: Public Opinion and Abortion’ in E Lee (ed), Abortion Law and Politics Today (London, Macmillan Press, 1998) 159. 37  Manning (n 25) [225]. 38  ibid [230].

Seales v Attorney-General—Commentary 131 judgment) potentially pernicious. The feminist judgment centres on the idea that ‘a woman may sense and internalise the unspoken messages that society or family members send or that she mistakenly thinks are being sent’.39 Importantly, Manning J does not believe that a doctor can accurately assess whether a woman’s decision is truly voluntary, given that many decisions may be the product of gendered norms that create pressures imposed from without and within. On this point, the rich insights of our feminist colleagues reminded us that we should challenge the notion that caring is burdensome. Rather, caring could be more constructively described as a highly valued social contribution and a form of devotion. We must be mindful that the language we adopt may perpetuate the very covert pressures that we aim to combat. The thoughtful feminist judgment inspires a range of questions. Perhaps we agree that women are currently subject to these social forces. We may also agree that these forces impact upon a woman’s desire for an assisted death. How do we acknowledge that these factors are vital to this woman’s identity and give meaning to her existence? Feminists may well be mindful of guarding the presumption that women are ‘rational, competent individuals who are able to choose in their own best interests’.40 How do we acknowledge that relationships are central to a woman’s understanding of her best interests? Perhaps we dignify her personal decision, even if she has subjugated herself to the interests of others. Importantly, the feminist judgment and my questions recognise the centrality of relationships to many women’s decision-making processes. Indeed, both approaches support the assertion that ‘the law must regard relationships as key to its thinking and not ignore them’.41 In contrast to the judgment by Collins J, the feminist judgment incorporates issues broadly encompassed by the ethic of care, and references Carol Gilligan’s foundational text.42 Manning J deeply contemplates many permutations and impacts of caring. She is acutely aware of the psychological impact of being cared for at the end of life. Equally, she critiques the socially-conditioned compulsion of some women to care about others at the end of life, even if it compels them to hasten their deaths. In this respect, the care-based analysis takes account of feminist issues by sensitively examining how the gendered nature of care impacts upon crucial life-defining decisions by women. We may agree that prematurely ending one’s life in the interests of others could be seen as in some way tragic and to be prevented. This suggests a hierarchy, that some justifications for assisted dying are more socially acceptable than others (perhaps like justifications for abortion). How do we determine which reasons are worthy? How do we avoid substituting our values for her values? This is delicate territory, given the primacy of autonomy in our legal tradition, and explicitly in New Zealand law.43 Finally, perhaps we agree that a disproportionate percentage of women who seek assisted dying will be covertly influenced by such social forces, including lack of adequate

39 ibid. 40 

Geddis, ‘End-of-Life Choice’ (n 20). Herring, ‘Where are the Carers in Healthcare Law and Ethics?’ (2007) 27 Legal Studies 51, 52. And see J Herring, Caring and the Law (Oxford, Hart Publishing, 2013). 42  C Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, Mass, Harvard University Press, 1982). 43  K Kersey, ‘Lecretia Seales’ Case: No Green Light for Medical Aid in Dying’ (2015) New Zealand Doctor 21. 41  J

132  Kate Diesfeld s­ upports.44 How do we then transform the social, political, economic and legal terrain so that women make autonomous decisions, free from such influences? Facilitated aid in dying, reassessed from a feminist perspective, illuminates the reality of many women’s lives. Women have intimate knowledge of the benefits and burdens of caring, and of being cared for. Compulsion to reduce this latter burden for loved ones may influence their decisions. They may disproportionately experience this unique form of vulnerability which in turn poses a challenge for judges, feminists and feminist judges. How do we respectfully take account of this vulnerability, which is born of gendered roles? How deeply should the courts scrutinise women’s interpretations of their own best interests? We face these questions when we support women to die in peace.

Reconceptualising Ms Seales’ Condition as a Disability Feminist legal scholars remind us that any judicial opinion is one of many possibilities: ‘Alternative opinions and decisions can always be made which are based on more imaginative approaches to equality and other jurisprudence’.45 In that spirit, there is value in contemplating Ms Seales’ status from an alternative perspective that takes account of the intersection between gender and disability. In fact, the feminist judgment specifically refers to disability46 by citing Lord Sumption in the UK Supreme Court decision in R (Nicklinson) v Ministry of Justice.47 The great majority of people contemplating suicide for health-related reasons are acutely conscious that their disabilities make them dependent on others. These disabilities may arise from illness or injury, on indeed (a much larger category) from the advancing infirmity of old age.

While the Bill of Rights was central to the judgments, an additional human rights analysis is potentially relevant. In New Zealand, the prohibited grounds of discrimination under the Human Rights Act 1993 include disability. Ms Seales’ condition might qualify as disability under several subsections of s 21(h). She would thereby be entitled to the rights under the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which New Zealand ratified in 2008.48 Article 12(2) recognises that ‘persons with disabilities enjoy legal capacity on an equal basis with all others in all aspects of life’. Also, art 12(3) provides that ‘States parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’.49 Considerable commentary has analysed how art 12 supports a shift from traditional substitute decision-making to supported decision-making.50 Arguably, the concept of 44 

Gillett, ‘Aid in Dying’ (n 20). Davies, ‘Idea of Law’ (n 34). 46  Manning (n 25) [232]. 47  R (Nicklinson) v Ministry of Justice [2014] UKSC 38, [2014] 3 WLR 2000 [228]. 48  Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, opened for signature 30 March 2007) UNGA Res 61/106). 49 ibid. 50  See, eg, F Beaupert and T Carney, ‘Public and Private Bricolage–Challenges Balancing Laws, Services and Civil Society in Advancing CRPD Supported Decision-Making’ (2013) 36 University of New South Wales Law ­Journal 175; T Carney, ‘Supported Decision-Making for People with Cognitive Impairments: An Australian Perspective?’ (2015) 4 Laws 37; B McSherry, ‘Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws’ (2015) 4 Laws 125. 45 

Seales v Attorney-General—Commentary 133 s­ upported decision-making was envisioned primarily for people with impaired mental or cognitive capacity. However, the spirit of the CRPD encourages state parties to apply these protections to diverse impairments. If this interpretation is accepted, Ms Seales should be supported with her decision. Thus, the CRPD may be a powerful foundation for drafting New Zealand’s legislation on facilitated aid in dying to support the preferences of people in Ms Seales’ circumstances. Manning J focusses on powerful social norms that may compel women to seek assisted dying. However, there are counter-forces. Human rights law is also a manifestation of social, as well as political and legal, norms. A human rights analysis that incorporates the obligations under the CRPD would encourage judicial recognition of the complex status of women who have disabilities.

Seales v Attorney General

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10 High Court  Wellington 25, 26, 27 May, 4 June 2015 Collins and Manning JJ MANNING J.

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[212] This is a sad and difficult case. Concerned as it is with matters of life and death, it is hard to think of a case of greater public importance. Assisted dying is among the most pressing issues confronting societies in the new millennium and, as such, is an issue which will continue to arise, given “the greying of society” and advances in medical technology allowing people’s lives to be extended, in some cases well beyond their own assessment of its quality. [213] I agree with Collins J that this Court cannot grant the criminal law declarations Ms Seales seeks for the reasons his Honour states. I agree too that the situation does not arise for the Court to consider making a declaration of inconsistency, assuming that it has such a power.164 I also find there to be no inconsistency between the criminal law provisions (culpable homicide in s 160(2)(a) and aiding and abetting suicide in s 179 of the Crimes Act 1961) and Ms Seales’ right not to be deprived of life in s 8 or her right not to be subjected to cruel, degrading or disproportionately severe conduct in s 9 of the New Zealand Bill of Rights Act 1990 (the NZBORA). I adopt Collins J’s conclusion that s 9 of the NZBORA is not breached for the reasons that he states. [214] In my view, the most substantial issue in this case is whether Ms Seales’ right not to be deprived of life in s 8 is breached by the offence of aiding and abetting suicide in s 179. Whether s 8 is breached depends on (1) whether Ms Seales’ right not to be deprived of life is engaged by the offence in s 179; (2) if so, whether that deprivation falls within the exception in s 8 i.e. it is in accordance with the principles of fundamental justice;165 and (3) if that exception is not satisfied and s 8 is therefore breached by s 179, whether the limit created by s 179 on Ms Seales’ right to life is “a reasonable limit in a free and democratic society” in terms of s 5 of the NZBORA. [215] I agree with His Honour’s conclusion that, although Ms Seales’ right to life is engaged by the offence in s 179, s 8 is not breached. The reason is that the offence falls within the exception in s 8; the limit it places on her right to life is in accordance with the principles of fundamental justice. But my reasoning differs to Collins J’s. Given the

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As was assumed by Heath J in Taylor v Attorney-General [2015] 3 NZLR 791 at [79], but which is under appeal. Section 8 provides: “No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.”

Seales v Attorney-General—Judgment 135 i­mportance of the issues at stake and out of respect for Ms Seales, who has made the ­courageous decision to forgo her own privacy at a time when there is the greatest need for it to be respected, in order that these arguments may be considered by this Court, I have chosen to write separately to explain how my reasoning differs from Collins J’s on this issue. It is my hope that the knowledge that her arguments have been heard and considered carefully by this Court will at least be a source of some satisfaction and comfort to her, despite an outcome adverse to that which she seeks. [216] Although palliative care has developed enormously in recent decades, the expert medical witnesses all conceded that in a small percentage of cases it cannot alleviate a person’s physical pain sufficiently. More importantly, it may not be able to take away a person’s “existential suffering.” Studies have found this, rather than physical pain or fear of it, to be the main motivation of people seeking an assisted death.166 [217] I reject the Attorney-General’s argument that everyone who suffers from a terminal medical condition is vulnerable physically and psychologically, since it is inevitable that they will suffer pain, distress and fear. “Vulnerability” in this context has a narrower focus. It refers to vulnerability to making a decision to die prematurely, because, for example, of being subjected to coercion from family members or one’s doctor, or because of relentless pain that cannot be alleviated, or untreated depression, rather than vulnerability in any general sense. [218] Ms Seales has consistently maintained that she is not vulnerable in this sense, notwithstanding her deteriorating condition and debilitating symptoms. She is competent and rational; she can make a voluntary, uncoerced decision; her wishes have been carefully considered and are informed; she is not depressed. It may be that Ms Seales’ case sits towards one end of a spectrum of capacity to make this decision. There will be others for whom this is not the case. Such a person may maintain vociferously that they are fully competent and their decision completely voluntary, but they are wrong. It is not always easy for people to assess themselves objectively, especially given the extreme medical circumstances in which they are placed, and supportive medical evidence will always be required. In Ms Seales’ case, however, her doctor’s opinion coincides with her own self-assessment. [219] I note more generally, however, Professor Owen’s evidence that people like Ms Seales, who are highly autonomous, successful and driven individuals, and who, like her, would also describe themselves as “fiercely independent and active, … very intellectually engaged with the world and [their] work”, and who plan for the future and have clear ideas about what is acceptable to them “frequently find the effects of their illness particularly intolerable, because the loss of autonomy and inability to manage their lives is directly contrary to the things they value.” They are likely to find it intolerable that the disabilities arising from their condition render them so dependent on others. From another perspective, these personality traits can be seen as possibly making a person vulnerable to seeking an assisted death prematurely in a different sense to that of which we usually think. Their vulnerability was well captured by Lord Sumption in R (Nicklinson) v Ministry of Justice:167 [People’s] feelings of uselessness are likely to be accentuated in those who were once highly active and engaged with those around them, for whom the contrast between now and then must be particularly painful.

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Sometimes referred to as the “demoralisation syndrome”, its core features are hopelessness, loss of meaning, and existential distress, see R Duncan MacLeod, D Wilson, & P Malpas, “Assisted or hastened death: The healthcare practitioner’s dilemma” (2012) 4 Glob J Health Sci 87. R (Nicklinson) v Ministry of Justice [2014] UKSC 38 at [228].

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[220] I make this observation simply to underline the point I make later that assessing a person’s vulnerability in the relevant sense is a complex and unreliable exercise. Collins J accepts and respects Ms Seales’ self-assessment that she is not vulnerable, cautioning (at para [80]) against “medical judgements based on assumptions”. I do not disagree with Collins J, although, given my finding that the criminal law, in prohibiting even a competent, voluntary and fully informed person from receiving assistance to die, does not violate their right to life, it is not actually necessary for me to reach a decision on the matter. [221] If Ms Seales’ doctor supplied Ms Seales with a prescription for a fatal dose of medication with the intention or knowledge that Ms Seales would use it to take her life, and Ms Seales did so, her doctor would be guilty of the offence of aiding and abetting suicide in s 179.168 [222] Counterintuitive as it may initially seem, Ms Seales’ right not to be deprived of life protected by s 8 of the NZBORA is engaged by the criminal offence of aiding and abetting suicide in s 179 of the Crimes Act. As explained by the Supreme Court of Canada in Carter v Canada (Attorney-General),169 the right to life is engaged by state action or laws which impose on or create an increased risk of death for an individual or a class of persons. Ms Seales has given evidence that because the offence in s 179 prevents her from having assistance to die at a time of her choosing, which may be after she has lost the physical ability to commit suicide herself, she may be forced to take her own life prematurely before she loses that ability. This phenomenon is evidence-based. We received evidence supporting the fact that others in Ms Seales’ position may attempt to or have taken their lives prematurely while they retained the ability to do so, because of their fear that they may later not be in a position to do so as a result of the worsening effects of their condition; if assisted dying was available to them, it is likely that they would not have felt forced to do so. Evidence to the same effect was accepted by the courts at all levels in Carter. [223] In determining whether the limit produced by s 179 on the right to life is “consistent with the principles of fundamental justice,” and whether s 179 is a “reasonable limitation” on the right to life under s 5, I am assisted by and will apply the well-developed framework set out in Carter, as did Collins J. As he explains, this approach analyses the “fundamental justice” exception in s 8 in terms of the three tests of arbitrariness, overbreadth, and gross disproportionality. In turn, the questions of overbreadth and proportionality are to a large extent determined by the statutory purpose served by s 179. In particular, if s 179 is considered to have the broad purpose of protecting all life, not just that of the vulnerable, as Collins J held, it is easier to conclude that prohibiting a doctor from providing assisted dying to a non-vulnerable person such as Ms Seales falls within that purpose. The Supreme Court of Canada in Carter was alive to this rhetorical device when it complained:170 If the object of the prohibition is stated broadly as “the preservation of life”, it becomes difficult to say that the means used to further it are overbroad or grossly disproportionate. The outcome is to this extent foreordained.

40

[224] That is undoubtedly true, but so also is it true that if the object of the offence is defined narrowly as protecting only the lives of the vulnerable, as the Supreme Court of

168

169 170

Section 179 of the Crimes Act 1961 states: Aiding and abetting suicide Every one is liable to imprisonment for a term not exceeding 14 years who— … (b) aids or abets any person in the commission of suicide. Carter v Canada (Attorney-General) [2015] 1 SCR 331. At [77].

Seales v Attorney-General—Judgment 137 Canada held in Carter, the more likely it is that the prohibition on physician-assisted dying will fall foul of the “overbreadth” and “grossly disproportionate” conditions. The outcome is foreordained either way. This form of argumentation obscures the moral issues at stake and the subjective value judgements being made about them by the Court. [225] Collins J considers that in decriminalising attempted suicide whilst retaining the offence of aiding and abetting suicide in 1961, the legislature intended to give effect to a broad purpose. It sought to protect all human life, not just that of those who are vulnerable. I am prepared to assume, however, that the purpose of the offence of aiding and abetting suicide in s 179 is protection of the vulnerable from being pressured to take their lives prematurely in a moment of weakness.171 The questions which flow from this are twofold: first, who might be classed as “vulnerable” in this sense, and secondly, can those people be protected by a permissive statutory regime of detailed safeguards? For me, these questions go to the heart of the issues of whether a blanket prohibition on aiding and abetting suicide in s 179 offends the overbreadth and gross disproportionality conditions of the fundamental justice exception. [226] There is a concern that, if assisted dying was made legal, some may become vulnerable to feeling pressured to take that option, despite initially not wishing to do so or being ambivalent. The concern I have arises particularly in respect of women, and it challenges the theory that women’s decisions for an assisted death are always the unambiguous expression of a truly autonomous will. [227] As is well-known, women have a greater life expectancy than men, and so develop more diseases and disabling conditions associated with ageing. They are more likely to be alive and available to care for a male partner and to experience the death of that partner, and so are more likely to live alone when they become elderly and infirm, caring for themselves without family support, or to die in residential care. Women are relatively more economically disadvantaged across their lives than men, but must make a greater financial contribution to their care in their later years over a longer period. [228] The caring role is assigned primarily by our society to women, whether for children, partners, sick or disabled relatives, elderly parents or parents-in-law. Carol Gilligan is wellknown for her work identifying “an ethic of care for others as the center of women’s moral concern” and personal identity, and a stereotype of “female self-sacrifice.”172 As society’s primary caregivers, many women tend to define themselves first and foremost in terms of their family’s needs. When they become elderly or suffer from a debilitating condition or disability, and are themselves in need of care, they may find it difficult to accept the role reversal in being cared for. The inculcated response of self-sacrifice and the fear of being an emotional, financial and time-consuming burden to their families, whose interests they are used to putting first over a lifetime, makes them vulnerable to feel pressure to take the assisted dying option, even if they are initially ambivalent or they do not yet wish to die. Similarly, they may feel a financial burden on the state, whose scarce resources devoted to their health and social care they may feel are better spent on the young and those with a positive prognosis. Those without family or friends to care for them may perceive death as a reasonable option. A woman may decide that a premature, assisted death is the best option for all concerned, except perhaps herself. But she is socially conditioned to believe that her interests are in any event of secondary importance. Because the option of assisted dying is lawful and available, she will need to justify to herself why she is not choosing to take that option. If it were not lawful, she may not consider cutting her life short.

171 172

Rodriguez v British Columbia (1993) 107 DLR (4th) 342, 396. See C Gilligan In a Different Voice: Psychological Theory and Women’s Development (Harvard Women’s Press, Cambridge, Mass. 1982) 70 and 131–132.

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[229] We need to concern ourselves also as a society with the key message that law sends to those contemplating an assisted suicide. A fear is that law reform will lead to the cultivation of a societal culture in which a timed and controlled assisted death is an accessible and normalised option, so much so that assisted dying might even gradually turn from an option into being perceived as an obligation to die by those susceptible to making the decision to spare their families or society the burden of caring for them. [230] That people, perhaps disproportionately women, are susceptible to this reasoning might not ultimately be a barrier to law reform, if they could be reliably identified and determined ineligible for assisted dying. In Carter the Supreme Court upheld Smith J’s finding that properly qualified and experienced physicians can reliably assess patient competence, lack of voluntariness, coercion and undue influence as part of the normal assessment processes inherent in obtaining the person’s informed consent. And so a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error.173 I am sceptical about this. I concede that a doctor is very probably capable of assessing a patient’s mental competence, but I am not convinced that vulnerability in the sense I have been describing is capable of objective clinical assessment. [231] My concern is not so much about cases of overt pressure from relatives who stand to gain financially, though that regrettably will feature in some cases. Elder abuse and exploitation are all too common in our community. But these situations may at least be more amenable to detection. I am more concerned about cases where nothing at all is said by any family member to encourage the person to opt for an assisted death; indeed, the family may desperately want their mother to live for as long as possible or as long as she has an acceptable quality of life, and would be horrified, had they the slightest inkling of her thinking. An assisted death may deny them a chance to care for their ailing family member, which they may see as an expression of love. The evidence apparently suggests that in the preponderance of cases any family influence is for the patient not to die.174 My concern is, however, that a woman may sense and internalise the unspoken messages that society or family members send or that she mistakenly thinks they send. In this circumstance, there is no evidence of external pressure to be found by the doctor. I am concerned about the possible impact of influences too subtle to be detected. [232] It is not uncommon for patients to be evasive with their doctors. Common examples include withholding information about their smoking or that they are taking complementary remedies.175 A study from Oregon found that if a person states as one reason for seeking an assisted death, even of a number, the “fear of being a burden,” doctors are more likely to decline the request.176 It would soon become known that an applicant for assisted dying must be sure not to utter the word “burden.” Instead, in order to be eligible, she should emphasise that her suffering makes continued life intolerable to her. A woman with this mindset, bent on achieving an assisted death to avoid being a burden to her family or to society, may not find it very difficult to convince a doctor required to certify as to her ­eligibility that she wants to die and that her decision is free and voluntary. Accordingly, I am not prepared to accept that a properly qualified and experienced doctor can reliably

173 Carter v Canada, above n 169 at [105]–[109]. 174 See Carter v Canada [2012] BCSC 886 at [802]. 175 In a study in the early 1990s 85% of patients admitted concealing or equivocating about information to their doctors, and roughly a third claimed to have lied, see D Sokol, “Beware the lies of patients” BMJ online (22 January 2014). 176 L Ganzini et al, “Experiences of Oregon nurses and social workers with hospice patients who requested assistance with suicide” (2002) 347 NEJM 582.

Seales v Attorney-General—Judgment 139 and accurately assess whether the patient’s decision is truly voluntary, rather than the product of self-imposed, internal pressure. On this basis, it follows that no detailed code of safeguards could adequately protect those who are vulnerable to these sorts of messages and mental processes. [233] The Supreme Court of Canada in Carter did not discuss this scenario of patients 5 feeling a burden to their families or the state. On the other hand, Lord Sumption in the UK Supreme Court decision in Nicklinson considered the risk of the scenario that I have described to be all too real in a section of his judgment that bears lengthy quotation:177 The vulnerability to pressure of the old or terminally ill is a more formidable problem. … The real difficulty is that even the mentally competent may have reasons for deciding to kill themselves which reflect either overt pressure upon them by others or their own assumptions about what others may think or expect. The difficulty is particularly acute in the case of what the Commission on Assisted Dying called “indirect social pressure”. This refers to the problems arising from the low self-esteem of many old or severely ill and dependent people, combined with the spontaneous and negative perceptions of patients about the views of those around them. The great majority of people contemplating suicide for health-related reasons, are likely to be acutely conscious that their disabilities make them dependent on others. These disabilities may arise from illness or injury, or indeed (a much larger category) from the advancing infirmity of old age. People in this position are vulnerable. They are often afraid that their lives have become a burden to those around them. The fear may be the result of overt pressure, but may equally arise from a spontaneous tendency to place a low value on their own lives and assume that others do so too. … These assumptions may be mistaken but are none the less powerful for that. The legalisation of assisted suicide would be followed by its progressive normalisation, at any rate among the very old or very ill. In a world where suicide was regarded as just another optional end-of-life choice, the pressures which I have described are likely to become more powerful. … I very much doubt whether it is possible in the generality of cases to distinguish between those who have spontaneously formed the desire to kill themselves and those who have done so in response to real or imagined pressure arising from the impact of their disabilities on other people.

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There is also support for my concern, related specifically to women, in the academic literature.178 [234] Turning now to application of the law, I must determine whether s 8 of the NZBORA 35 is breached, either because (1) the deprivation of Ms Seales’ right to life is not in accordance with the principles of fundamental justice; or (2) the limit created by s 179 on Ms Seales’ right to life is not “a reasonable limit in a free and democratic society” in terms of s 5 of the NZBORA. As explained earlier, the “fundamental justice” exception in s 8 requires consideration of the three tests of arbitrariness, overbreadth, and gross disproportionality. 40

177 178

R (Nicklinson) v Ministry of Justice, above n 167 [228]. K George, “A woman’s choice? The gendered risks of voluntary euthanasia and physician-assisted suicide” (2007) 15 Med L Rev 1; H Biggs, “I don’t want to be a burden! A feminist reflects on women’s experience of death and dying” in S Sheldon and M Thomson Feminist Perspectives On Health Care Law (Cavendish, London 1998), at 279; K Greasely, “R (Purdy) v DPP and the case for ­wilful blindness” (2010) 30 OJLS 3301, p 3321; J Herring, “Escaping the shackles of law at the end of life: R (Nicklinson) v Ministry of Justice” (2013) 21 Med L Rev 487.

140  Joanna Manning

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[235] An arbitrary law is one where there is no rational connection between its purpose, assumed to be protection of the vulnerable, and the limit it imposes on the life of Ms Seales and others similarly placed. It is not arguable that s 179 is arbitrary, because a total prohibition on aiding and abetting suicide clearly assists in achieving the objective of protecting vulnerable people. Accordingly, Ms Seales’ right to life is not limited arbitrarily. [236] The second component, “overly broad,” is more arguable. It asks whether the law is drawn too broadly and so targets conduct that bears no relation to the object of the law in question. The focus is not on broad social impacts, which are included as part of the otherwise very similar “minimal impairment” inquiry under s 5. Rather the focus is on the impact of the impugned measure on the individuals whose rights are limited, i.e. Ms Seales and others like her. Hence the question: is the prohibition on aiding and abetting suicide in s 179 over-inclusive, in that it reaches conduct that bears no relation to its object of protecting the vulnerable? [237] A first point is that this is not a purely factual inquiry; it is ultimately evaluative. As I have found, there is insufficient certainty that abuses and errors can be prevented by a prescriptive and detailed regime of safeguards. Because there is no reliable means for doctors as part of the assessment process to distinguish accurately between those who are vulnerable and those who are not, the offence does not go too far by also denying those who are not vulnerable the right to an assisted death. Only a complete prohibition on assisting suicide is capable of protecting vulnerable people who experience internal pressure to end their lives. Because doctors are not capable of detecting the vulnerable with sufficient accuracy and distinguishing them from those who are not, it is necessary to target all in order to protect those who are vulnerable from acceding to pressure, internal or external, to cut short their lives. [238] Turning to the third aspect of “fundamental justice”, “gross disproportionality” concerns whether the impact of the limit on the individual’s life is grossly disproportionate to its objective. Again, the focus is not on societal impacts, as with the “proportionality” component of s 5, but on the impact on the rights of the applicant and people in the same circumstances. It asks if the negative effects of the law (the inability of competent, voluntarily consenting, rational people to have assistance to die, thereby imposing suffering on them and potentially shortening their lives) are grossly disproportionate to or, as the Supreme Court of Canada put it in Carter, “out of sync with”, the objective of the law (protecting the vulnerable from being induced to commit suicide in a time of weakness). Collins J concludes that s 179 is not grossly disproportionate because its impact and dual objectives are well within the norms accepted in New Zealand society. Because I have assumed a narrower construction of the objective of s 179, I am unable to adopt this line of reasoning. [239] I agree, however, that the offence of aiding and abetting suicide passes the grossly disproportionate test. I recognise that the total prohibition on being able to access assisted dying causes suffering to Ms Seales and that the impact on her right to life is grave. ­Baroness Hale described the effect of a universal ban on assisting suicide “as a form of cruelty”, in that it forces people such as Ms Seales either to take their lives prematurely while they are still able, or to stay alive, not for the sake of protecting themselves, but for the sake of protecting others.”179 Confronting this consequence is certainly troubling. [240] A point to note, however, is that the lives of vulnerable people placed at risk by a permissive regime which is incapable of protecting them from pressure to seek assistance

179

R (Nicklinson) v Ministry of Justice, above n 167, [313].

Seales v Attorney-General—Judgment 141 to die prematurely are also at stake, as well as those like Ms Seales, who are not at such risk. And the impact on their lives is similarly severe viz. premature death. So this inquiry involves balancing the respective “rights to life” of these two classes of people. For me, this case is in essence about whether the risks to vulnerable people associated with assisted dying from overt or covert pressure to end their lives are outweighed by the benefits of permitting autonomous, competent, truly voluntary and informed people suffering from a terminal medical condition, to have assistance to terminate their lives. Given the concerns I have expressed about the inability of a more limited law with statutory processes and safeguards to adequately protect vulnerable people, only a total prohibition is capable of providing sufficient certainty that abuses and errors can be prevented. In these circumstances, it cannot be said that the impact of the total prohibition in s 179 on Ms Seales receiving assistance to die, serious as it is, is disproportionate, much less grossly so, to its objective of protecting vulnerable people from being induced to take their lives prematurely. [241] Given my conclusion that the offence in s 179 is not arbitrary, overbroad or grossly disproportionate, it follows that its negative impact on Ms Seales’ life is in accordance with the principles of fundamental justice. Hence s 8 of the NZBORA is not breached. It is unnecessary then to consider the further questions of whether s 179 constitutes a “reasonable limitation” in terms of s 5, and whether, if it is not, a court should issue a declaration of inconsistency. [242] Before concluding, I would observe that Canadian judges have been given the constitutional role of defining and delineating the content of broadly drafted rights in the Canadian Charter of Rights and Freedoms, and of striking down legislation which is incompatible with those rights. The constitutional role of a New Zealand judge is different. Even if this Court had concluded that s 179 was inconsistent with Ms Seales’ right to life, s 4 of the NZBORA requires that it be given continuing effect. At most, the Court might make a declaration of inconsistency, which is designed to alert the legislature to the inconsistency and to invite it to turn its mind to whether it wishes to amend or repeal the law to make it consistent with the right, or whether it considers the objective of the law is more important in the public interest than this aspect of the protected right, such that it wants to leave the statute as is, despite the inconsistency. [243] I suggest that, at least in this case, the New Zealand constitutional approach is the preferable one. Ultimately, the question whether assisted dying should be legalised is an ethical, not a legal, one. It is a question of fundamental importance to society, and one on which views are deeply held and substantially divided. There are legal aspects to the issue, certainly, and where these come before it, a court must do its conscientious best to decide them. But I doubt that the decision which is right or best for this or any society can be made by turning what is at heart an ethical question into a legal one, thereby shutting down the moral debate. On a question such as this, concerning fundamental moral matters of life and death, legal change must be the province of Parliament, after citizens and their representatives have the opportunity for the democratic expression of their views. As well as the question of constitutional legitimacy, I am acutely aware that this judgment is written from a culturally-specific, moral perspective. How might people from different cultures in our pluralist and multi-ethnic country, of whose experience the courts are ill-equipped to take account, and who are not represented in this litigation, approach legalised assisted dying? To what extent might the attitudes of Māori and Pacific peoples, more collectivist communities which may place less emphasis on individual autonomy which underpins assisted dying, differ? What of the perceptions of Asian New Zealanders and other migrant communities? Only Parliament has the institutional ability through its processes to ensure a broad assessment of the differing views, experiences and kinds of expertise, pointing again to the need for it to have the final say.

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142  Joanna Manning [244] To those who would reply that Parliament is unlikely to be interested in engaging in such a politically controversial issue, one need only recall that legislatures around the world have passed legislation reforming the law in their jurisdictions. Canada and the State of California have done so this year.180 The New Zealand legislature looks likely to con5 sider this very issue. We were informed by Counsel that two new Private Members Bills on the subject are in preparation and are likely to be introduced into Parliament within the year. That is the proper avenue for this important and intensely moral debate to be pursued. [245] Accordingly I agree with Collins J that Ms Seales’ right to life in s 8 of the NZBORA is not violated, because any deprivation is in accordance with the principles of fundamental 10 justice. The Court cannot therefore issue the declarations sought by Ms Seales. Declarations declined.

180

See California’s End of Life Option Act 2016 and An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), SC 2016, c 3 (Canada).

9 Commentary on Hallagan v Medical Council of New Zealand Whose Choice, Whose Conscience? COLIN GAVAGHAN

Introduction The legal status of abortion provision in New Zealand is found at the tangled crossroads of several pieces of legislation, respectively the Contraception, Sterilisation and Abortion Act 1977 (NZ), the Health Practitioners Competence Assurance Act 2003 (NZ), and the Crimes Act 1961 (NZ). Although they do not refer specifically to abortion, the New Zealand Bill of Rights Act 1990 and the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (NZ) are also highly relevant. Together, these enactments represent a somewhat awkward compromise, whereby there is no right to abortion established, but rather, a range of circumstances in which the provision of abortion will not be regarded as unlawful. Whether those circumstances are fulfilled will be a decision taken by two ‘certifying consultants’, under the oversight of the Abortion Supervisory Committee. Additionally, no doctor can be obliged ‘to perform or assist in the performance of an abortion … if he objects to doing so on grounds of conscience’.1 This provision for conscientious objection is a feature that has come to be recognised across a number of jurisdictions, often coinciding with the provision for legal abortion.2 As Lady Dorrian noted in Scotland’s Court of Session, this reflected legislative attempts ‘to balance the interests of those who wanted the law to be liberalised, to enable treatment to be regulated and carried out safely; with the interests of those who had genuine objections based on conscience’.3 Where precisely the balance should be struck when those interests come into conflict remains a live issue in a variety of jurisdictions4 and is precisely the issue that fell to be determined by Mackenzie J in 2010.

1 

Contraception, Sterilisation and Abortion Act (CSA), s 46(1). eg, Abortion Act 1967 (UK), s 4. Some Australian states and territories have laws that recognise ­conscientious objection while stipulating the duties of practitioners using this right; see, eg, Victoria’s Abortion Law Reform Act 2008, s 8, and Northern Territory’s Termination of Pregnancy Law Reform Act 2017, s 11. 3  Doogan v NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36, (2013) SC 496 [14] per Lady Dorrian. 4  Greater Glasgow and Clyde Health Board v Doogan [2014] UKSC 68, [2014] WLR (D) 550; Burwell v Hobby Lobby Stores, Inc. (2014) 573 US, (2014) 134 S.Ct. 2751. 2 See,

144  Colin Gavaghan

The Original Judgment The legal challenge that formed the basis of Hallagan v Medical Council of New Zealand ­followed a meeting between the Medical Council of New Zealand (the Council) and a group of anti-abortion doctors in August 2009,5 about the content of the Council’s ‘Beliefs and Medical Practice’ guidelines. When these discussions broke down, the group rapidly changed tack. Incorporating itself as the (deceptively neutral sounding) New Zealand Health Professional Alliance (NZHPA),6 the group—whose founder members included Wellington doctor Catherine Hallagan, who became the named applicant—initiated legal action. The group claimed that the Council’s guidelines imposed obligations on doctors that were incompatible with the statutory regime around abortion provision, specifically, in requiring them to refer patients to other providers when they were unwilling to provide them with services themselves. The existence of a right of conscientious objection was not in question in Hallagan. Rather, at issue was the extent of that right, and the duties incumbent on doctors towards their patients when exercising it. Is a general practitioner with a conscientious objection to abortion required to ‘make arrangements’ for passing that patient on to another doctor? Or is their duty merely to inform the patient of that option, leaving her to make arrangements for herself? Should such a doctor be conducting the original consultation at all, only invoking the objection if it looks as though abortion will be legally justified? Or should they exempt themselves from the entire process at the earliest possible stage? In the original judgment, Mackenzie J accepted some, but not all, of the applicant’s submissions. He did not accept the claim that an objecting doctor should be able to consider the woman’s case, only announcing the objection if the woman chooses to proceed with an abortion and it appears that the statutory criteria for abortion are satisfied. Mackenzie J agreed, however, that the proposed guidelines went too far in requiring the doctor to ‘arrange for the case to be considered and dealt with’ by another provider, even where their objection extends to that level of involvement. Instead, Mackenzie J took the view that the doctor’s duty is only to comply with s 174(2) of the Health Practitioners Competence Assurance Act, which means that they must inform the woman that ‘she can obtain the service from another health practitioner or from a family planning clinic’, but need do no more. If the doctor does elect to deal with the case, then they would become subject to an obligation to refer for abortion, provided the statutory criteria for abortion were met. At that later stage, the doctor having ‘undertaken the task of considering the case’, then the focus would shift to the rights of the patient.7 But at the initial consultation, ‘before there has been an involvement of a medical character’,8 the rights of the doctor carry greater weight. 5 

Hallagan v Medical Council of New Zealand (HC Wellington CIV-2010-485-222, 2 December 2010). Although describing itself as ‘an incorporated society that advocates for freedom of conscience in health care’, a closer investigation of the group’s website discloses that another of the Group’s purposes is ‘To uphold and promote the intrinsic value of human life’, and a series of articles opposing abortion and euthanasia, and expressing concern about the growth in recognition of LGBT rights, www.nzhpa.org. 7  Hallagan (n 5) [23]. 8 ibid. 6 

Hallagan v Medical Council of New Zealand—Commentary 145 Although neither party had its claims upheld in their entirety, the NZHPA website states that it ‘was pleased with this outcome and it was vindicated in taking its stand’.9 The Council, in contrast, indicated an intention to appeal the decision, but subsequently abandoned this proposal, ostensibly on the grounds of cost. NZ Doctor magazine quoted Council chair John Adams as explaining that:10 Having spent more than $214,000 defending its draft statement in court, the Council decided it must balance financial prudence with the desire to provide guidelines.

The Council’s decision was considerably less well received by some pro-choice advocates. The Abortion Law Reform Association of New Zealand (ALRANZ), for example, stated:11 [T]he Medical Council of New Zealand (MCNZ) has caved in to anti-abortion pressure, and decided not to appeal a judge’s ruling that gives doctors the right to simply show you the door if you want an abortion. … ALRANZ is appalled that the rights of women patients to the full spectrum of care is now essentially in the hands of whichever group has the most money to mount an expensive legal attack, which is what has happened in this case.

The Feminist Judgment Powell J’s replacement judgment diverges from the original in a variety of ways. Some of these relate to questions of framing and context, of acknowledging certain aspects of the question before her that were not explicitly acknowledged in the original judgment. Powell J acknowledges, for example, that the legal framework providing for abortion has greater significance for women than for men. While this may seem like stating the obvious, it flags an important point of distinction between the Contraception, Sterilisation and Abortion Act, and, for example the Human Assisted Reproductive Technologies Act 2004 (NZ), which explicitly recognises at s 4(c) that: [W]hile all persons are affected by assisted reproductive procedures and established procedures, women, more than men, are directly and significantly affected by their application, and the health and well-being of women must be protected in the use of these procedures.

While it should be evident that contraception and abortion, every bit as much as reproductive technologies, are likely to impact to a far greater extent on women than on men, it is welcome to see a judge explicitly take note of this before undertaking a balancing of rights and interests. Substantively, Powell J reaches a different conclusion to the original judgment with regard to the Council’s statement. She agrees with the Council that the requirements to ‘arrange for the case to be considered or dealt with’ may properly be considered ­administrative in nature, and as such, are a proper part of the practitioner’s duty and not something covered by the conscience clause.12 9 www.nzhpa.org/about-us.

10  ‘Medical

Council drops abortion case’ NZ Doctor (30 November 2011).

11 alranz.wordpress.com/2011/11/21/how-the-medical-council-sold-out-women. 12 

Powell J, this collection [65].

146  Colin Gavaghan While she suggests that a doctor who harbours a conscientious objection should never personally consider the case, she nevertheless takes the view that the legislation does not prevent this. However, if they choose to consider the case personally, they would need to follow through and make a referral if the criteria for abortion are met.13 In reaching this conclusion, Powell J adopts a markedly different approach to the rights and interests that require to be balanced in this case. Mackenzie J attempted to predicate his judgment on ‘ordinary principles of statutory interpretation, supported by a rights-focused analysis’,14 but as discussed above, insofar as rights figured in his analysis, it appeared to be the rights of the doctor that were of significance, at least at the point where the woman first presents to the General Practitioner (GP).15 Powell J adopts a different approach to the balancing of rights. While recognising that the doctor has rights of ‘external manifestation of religion and belief ’, derived from the Bill of Rights Act, she places more focus on the sorts of factors that might limit the exercise of such rights, as provided for in terms of s 5 of the Bill of Rights Act. Her judgment identifies two factors that may, she concludes, justify some limitation: —— That the ‘limitation of doctors’ freedom of conscience arises in the context of a voluntarily undertaken career in publicly funded healthcare’; and —— The legitimate objective of ensuring that pregnant women should not be unduly disadvantaged in their pursuit of healthcare services.

The former point is likely to arouse controversy. Supporters of the right to conscientious objection are adamant that those exercising such rights should not be professionally disadvantaged as a result, and indeed, protection from such discrimination is explicitly provided for in the legislation.16 However, the European Court of Human Rights, for example, has recognised that the voluntary choices of people assuming professional roles can be a relevant consideration in such cases:17 [109] While the Court does not consider that an individual’s decision to enter into a contract of employment and to undertake responsibilities which he knows will have an impact on his freedom to manifest his religious belief is determinative of the question whether or not there has been an interference with Article 9 rights, this is a matter to be weighed in the balance when assessing whether a fair balance was struck.

Powell J’s acknowledgment that it remains open to those with objections even to making arrangements for transfer to ‘choose an alternative medical specialty’ is likely to provoke particular opposition. Again, though, she is not the first judge to have made this observation. When a conscientious objection case came before the Scottish Court of Session, Lady Smith noted that:18 [15] Nurses and midwives should give careful consideration when deciding whether or not to accept employment in an area that carries out treatment or procedures to which they object.

13 

ibid [43]. ibid [23]. 15 ibid. 16  CSA, s 46(2). 17  Eweida v The United Kingdom [2013] ECHR 37. 18  Doogan (n 3). 14 

Hallagan v Medical Council of New Zealand—Commentary 147 With regard to the legislature’s legitimate objective, Powell J gives explicit recognition to the likely impact of refusal upon those women who face particular challenges in getting access to alternative providers without assistance—perhaps due to geography, age or language barriers.19 As Powell J notes in her feminist judgment, no reliable evidence was presented to the Court about the extent of these difficulties. It is, however, a consideration that should inform future decisions, both by courts and professional organisations. In regions with few doctors available to act as certifying consultants, the refusal of one of those few to assume that role could be more than merely inconvenient for women and girls. In its 2012 Annual Report, the Abortion Supervisory Committee noted with concern that:20 [T]here is a shortage of certifying consultants in some large provincial towns, such as Whanganui and Invercargill, as well as in a number of smaller towns throughout New Zealand.

A year later, the Abortion Supervisory Committee repeated this concern, adding that:21 Travelling from smaller regions to access services in main centres can delay consultations with certifying consultants, counselling and abortion procedures. This unnecessarily complicates what is already a stressful time for many people. We believe that requiring a woman to travel for services outside her community adds time and cost pressures creating a non-optimal environment that can hinder a woman’s ability to make a careful and considered decision. Travelling can also limit the support a woman needs from her community and whanau.

The balance between right to conscience and the rights and needs of pregnant women might look rather different if it were always possible for pregnant women to receive assistance from other doctors without undue delay or expense. A health service replete with sympathetic doctors would no doubt be able to accommodate a handful who refused to perform certain tasks. A patient in a large urban practice with a selection of GPs may have no difficulty in accessing an alternative, even without the assistance of her usual GP. In New Zealand, however, the reality is often starkly different. Powell J’s alternative judgment also requires that the right to object is subject to the important caveat that the objecting doctor should be required to disclose their objection at the commencement of the consultation. This condition is an important addition to the judgment. It takes seriously the rights of service consumers included in the Health and Disability Commissioners’ Code, in particular, the patient’s right to make an informed decision about her healthcare. It also takes seriously the circumstances of many women seeking abortions, who may recognise the importance of minimising delay, and who may not relish the prospect of recounting potentially intimate information to someone who has no intention of assisting her. In doing so, it rejects the NZHPA’s claim that an objecting doctor should be able to consider the case, disclosing their objection only at the point when it appeared that an abortion would be legally justified.22

19 

Powell (n 12) [7]. Report of the Abortion Supervisory Committee (Wellington, Ministry of Justice, 2012) 4. The ASC also expressed concern that ‘harassment of medical staff is taking place in Invercargill resulting from services now being offered at Southland Hospital’. 21  Report of the Abortion Supervisory Committee (Wellington, Ministry of Justice, 2013) 4. 22  Hallagan (n 5) [21]. 20 

148  Colin Gavaghan

Conscientious Objection—A Continuing Controversy Although conscientious objection is recognised in many legal systems, the debate around both its limits, and its very existence, shows no sign of relenting.23 While it is entirely possible for such debates to arise in other contexts,24 thus far the majority of instances have arisen in relation to reproductive health. As yet, abortion, sterilisation, contraception and other reproductive health services remain the only healthcare contexts in which such a right has been explicitly recognised in New Zealand, a situation that means that conscientious objection is likely to impact far more significantly upon women and girls than upon male patients. Defenders of conscientious objection may seek to locate that right within a narrative of heroic defiance in the face of immoral demands by the powerful; comparisons are sometimes drawn with those conscripts who stood by their pacifist principles rather than go to war, often incurring great personal cost in the process.25 A feminist approach to the subject in the context of reproductive rights would point out that, in the health care context, the balance of power will often lie in the opposite direction. In New Zealand, abortion can only be carried out by, and with the permission of, the medical profession. Its members are, in a very real sense, gatekeepers to women’s reproductive autonomy. Doctors or other healthcare professionals who voluntarily assume those gatekeeper positions are assuming positions of considerable responsibility and no little power over the women who come to them for assistance.26 As such, it does not seem unreasonable to require that, as a condition of being granted that power, healthcare professionals are willing to assume certain obligations and make certain compromises, thus preserving women’s autonomy.27

23  A recent issue of the influential Journal of Medical Ethics contains a range of articles on the subject: Journal of Medical Ethics (April 2017) 43(4). See also J Savulescu and U Schuklenk, ‘Doctors Have No Right to Refuse Medical Assistance in Dying, Abortion or Contraception’ (2017) 31 Bioethics 162. 24  Eg, around the provision of aid in dying where that is permitted. 25 For a New Zealand focus on this phenomenon, see www.teara.govt.nz/en/conscription-conscientiousobjection-and-pacifism/page-2. 26  Access to adequately trained healthcare experts is a precondition of safe abortion, and has contributed significantly to the reduction in mortality and morbidity from abortion; World Health Organisation, Safe Abortion: Technical and Policy Guidance for Health Systems, 2nd edn (Geneva, World Health Organisation, 2012.) Dependence on medical professional assistance, however, can often owe as much to legal and professional factors as considerations of safety. There is good evidence, for example, that nurse practitioners and nurse midwives with appropriate specialist training can carry out early abortion procedures as safely as specialist doctors. TA Weitz et al, ‘Safety of Aspiration Abortion Performed by Nurse Practitioners, Certified Nurse Midwives, and Physician Assistants Under a California Legal Waiver’ (2013) 103 American Journal of Public Health 454; M Berer, ‘Provision of Abortion by Mid-Level Providers: International Policy, Practice and Perspectives’ (2009) 87 Bulletin of the World Health Organization 58. Yet in many jurisdictions, including New Zealand, the provision of surgical abortion is legally limited to ‘medical practitioners’, ie doctors—a state of affairs has led some to speculation about ‘some level of professional turf protection.’ Y-S Chong and CN Yap-Seng, ‘Mid-level Providers: A Safe Solution for Unsafe Abortion’ (2006) 368 The Lancet 1939. 27 A further example of women’s reproductive autonomy being contingent upon approval by healthcare ­professionals can be found in the control of the importation of abortifacient medicines such as Mifepristone for use in ‘DIY abortions’. Such importation is illegal in New Zealand, and there may be valid safety-related reasons for this (though this is somewhat disputed), see, eg, ‘Statement Issued by the Director-General of Health under ­Section 98 of the Medicines Act 1981—Unapproved Prescription and Pharmacist-only Medicines from China’ (April 2006) www.medsafe.govt.nz/hot/alerts/ChineseMed/DGStatement.asp.

Hallagan v Medical Council of New Zealand—Commentary 149 Precisely what those should entail is, of course, a matter of ongoing disagreement. The pro-choice organisation ALRANZ, for example, argue that objecting doctors should have to make financial reimbursement to women ‘for trouble, inconvenience, hurt feelings, and injury to their dignity’.28 Powell J’s judgment goes nowhere near so far. Rather, it imposes a fairly minimal duty on healthcare providers: those who wish to occupy a role while refusing to carry out the totality of what it involves—who demand access to the role of gatekeepers, while steadfastly refusing to open the gate—must at least assist those whom they are refusing to help to find someone who will help them. While even that degree of complicity with abortion may be seen by some as a betrayal of their moral values, it is not unreasonable that allowing someone to assume a position of such power might sometimes involve prioritising their patients’ needs and rights.29 It is likely that many conscientious objectors are willing to compromise along those lines, exercising their right to conscience by not being directly involved in abortion provision, but not obstructing women who wish to access such provision. For a more intransigent cohort, however, it may be legitimate to question whether their efforts are closer to Wicclair’s notion of civil disobedience than conscientious objection properly so-called,30 in that the effect of their actions is to prevent what they see as an immoral act rather than merely staying true to their own principles. Those who insist on being allowed to occupy positions that will leave patients dependent upon them— particularly in remote areas with few other practitioners—while simultaneously being unwilling even to assist their patients in finding alternatives, are demonstrating little willingness to compromise. Indeed, in some cases, their efforts should perhaps be viewed in the context of a troubling history of repeated attempts to place obstacles in the path of women’s reproductive autonomy. At least since the mid-1970s, when the abortion issue became a prominent focus for campaigners and lawmakers in New Zealand, opponents of choice have deployed a wide variety of means—legal, political and sometimes criminal—to thwart and frustrate such access as women do have to safe and legal abortion. The grim detail is spelled out in Alison McCullough’s valuable history of the abortion rights movement in New Zealand.31 It includes police raids on abortion clinics, prosecution of abortion-providing doctors such as Jim Woolnough, harassment of employees and patients entering clinics, even arson attacks on those clinics. Although McCullough has noted that ‘[c]ase law has frequently been a friend of abortion rights reformers’,32 litigation challenges have also been employed to cause problems for abortion provision. While Right to Life New Zealand’s challenge to the Abortion ­Supervisory Committee was ultimately unsuccessful,33 the case lasted seven years, proceeded all the way to the Supreme Court. 28 alranz.org/?page_id=67.

29  And indeed, their patients’ conscience. For, as Powell J notes at [10], it is not only the doctor’s conscience that is engaged in abortion decisions. 30  M Wicclair, Conscientious Objection in Health Care: An Ethical Analysis (Cambridge, Cambridge University Press, 2011). 31 A McCulloch, Fighting to Choose: The Abortion Rights Struggle in New Zealand (Wellington, Victoria ­University Press, 2013). 32  ibid 74. 33  Right to Life New Zealand v Abortion Supervisory Committee [2012] NZSC 68. Right to Life NZ were claiming that ASC was failing to fulfil its statutory functions, with the result that abortions were being unlawfully approved.

150  Colin Gavaghan Viewed in this context, it may be that some exercises of conscientious objection are less of a defensive action and more of an aggressive one. As Bernard M Dickens has described it:34 Legislation of broad refusal or conscientious objection laws regarding reproductive health services turns the historical tolerance of religious freedom and diversity, which served as a shield to protect religious conviction and accommodation of difference, into a sword to compel compliance with religious beliefs by those who do not share them.

Whether this was really the intent of Catherine Hallagan or other members of NZHPA is impossible to know, but it seems prudent to remain alert to the possibility that conscientious objection is sometimes being deployed less in a good faith attempt to be exempted from personal involvement with abortion, and more as a tactic to prevent abortions from happening at all.

Conclusion The New Zealand legal system entrusts doctors to act as gatekeepers to abortion and often to contraception. Women’s reproductive choices, then, rely in large part on the willingness of those doctors to assist them. No-one else is permitted to do so. Parliament has made considerable accommodation for doctors who are unwilling to fulfill that part of their professional duty. But that accommodation does not—cannot—discharge them of all responsibilities to their patients. For some women and girls—those for whom youth or geography, poverty or language make locating an alternative particularly difficult—the minimalist approach of simply telling them that they can see another doctor is unlikely to be much of an improvement on simply abandoning them.35 Indeed, the objecting GP who agrees to see such a patient, understanding their situation but with no intention of assisting them, is arguably doing worse than nothing, taking up valuable time and possibly resources (the patient may still have to travel, take time off work or arrange childcare to see their own GP). From this perspective, the perspective of the patient rendered dependent on the healthcare profession, Powell J’s approach strikes a far better balance. It is an approach requiring that a GP unwilling to fulfill aspects of their professional duties at least assist in finding a replacement who will do so.

34  BM Dickens, ‘Conscientious Objection: A Shield or a Sword?’ in S McLean (ed), First Do No Harm: Law, ­Ethics and Healthcare (Abingdon, Routledge, 2006) 337, 343. 35  The NZHPA website insists that doctors should never abandon such patients. Rather, they should explore with her how each of her options will feel for her today, in 6 months, in 1 year, in 5 years, at the end of her life, etc. She may not be aware of the development of her unborn baby at this gestation. She may not be aware that abortion can have severe adverse psychological effects; see www.nzhpa.org/best-practice-guide. It may not be unduly cynical to suggest that such an approach sounds rather like an attempt to talk the patient out of her choice, in the guise of an attempt to provide her with impartial information. A doctor attempting such persuasion must surely, at the very least, disclose their perspective at the outset, making clear to the patient that she has the option of seeing another doctor instead.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY BETWEEN

CIV-2010-485-222

CATHERINE MARY HALLAGAN First Applicant NEW ZEALAND HEALTH PROFESSIONALS ALLIANCE INCORPORATED Second Applicant

AND

MEDICAL COUNCIL OF NZ Respondent

Hearing:

1–2 November 2010

Counsel:

A H Waalkens QC and A L Credin for Applicants M T Scholtens QC and J P Coates for Respondent

Judgment:

2 December 2010

I direct the Registrar to endorse this judgment with a delivery time of 12pm on the 2nd day of December 2010. RESERVED JUDGMENT OF POWELL J [1] The Medical Council is a statutory body with responsibilities related to the registration, standards, conduct and competency of medical practitioners (whom I shall call ‘doctors’). [2] In exercise of its statutory role, the Medical Council has prepared a statement entitled “Beliefs and Medical Practice” (the statement) which outlines the duties of doctors when their personal beliefs may affect their practice. The statement is aligned with other Medical Council guidance including its core statement, “Good Medical Practice”. In drafting the statement, the Medical Council says that it attempted to balance the rights of

152  Rhonda Powell

patients to be fully informed, to effective communication and to have services provided in a manner consistent with their needs, with doctors’ rights to freedom of thought, conscience and religion. The Medical Council has amended the statement twice in an attempt to reach agreement with the applicants. The latest version, which is the subject of these proceedings, is dated October 2010. [3] The applicants are Dr Catherine Hallagan, a general practitioner registered with the Medical Council, and the New Zealand Health Professionals Alliance, an incorporated society that advocates for freedom of conscience in healthcare. The applicants have challenged the statement in judicial review proceedings because they believe that the duties imposed by the statement impinge upon doctors’ freedom of conscience. [4] The core of the disagreement relates to what a doctor should do when approached by or on behalf of a woman seeking advice about abortion, if that doctor has a conscientious objection to abortion. The statement sets out a number of duties, including a duty to “make arrangements for the ­woman’s case to be considered by another medical practitioner”. The applicants allege that the duty is limited to informing the woman that she can obtain the service from another doctor or from a family planning clinic but that it is not necessary for the doctor to make arrangements or referrals. [5] The questions that I need to determine are: (a) What duties does the law impose upon a doctor who is approached by or on behalf of a woman seeking advice about abortion, if that doctor has a conscientious objection to abortion? (b) Is the statement inconsistent with these legal duties? [6] These questions require me to reconcile s 32 of the Contraception, Sterilisation and Abortion Act 1977 (the CSA Act), s 46 of the CSA Act, s 174 of the Health Practitioners Competence Assurance Act 2003 (the HPCA Act) and ss 13, 14 and 15 the New Zealand Bill of Rights Act 1990 (the NZBOR Act). The rights of women patients under the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (the Code) are also relevant. [7] This case has important implications for women who seek advice from a doctor about abortion. The outcome will be especially significant

Hallagan v Medical Council of New Zealand—Judgment 153

for women in rural areas where there is limited geographical access to general practitioners and family planning clinics, as well as to women in small communities who may have heightened privacy concerns. It has particular ramifications for women who have difficulty navigating the healthcare system, such as young women or women who do not speak English well, and for women who became pregnant through sexual violation and who may not want to discuss their circumstances with different doctors repeatedly. [8] In interpreting the legislation at the heart of this dispute, I must take into account the context in which the dispute arises. I will therefore set out this context—women’s access to abortion, the legal regulation of abortion, doctors’ duties and the right to conscientious objection—before addressing the issues. Setting the context Women’s access to abortion [9] An unexpected pregnancy is a personal and a unique experience. A woman’s decision about whether to continue an unexpected pregnancy is a decision that she has to live with for the rest of her life. If she decides to continue with the pregnancy, she will endure the physical and emotional tolls and the potential health risks of pregnancy and childbirth (which include the risk of maternal death). If she then chooses to parent the child rather than to put it up for adoption, she will also take on the financial burdens, and restriction of career opportunities and leisure activities that are integral to motherhood. Although most women assume these encumbrances willingly, motherhood places significant burdens on women and irrevocably changes the course of their lives. [10] A woman’s decision about whether to continue an unplanned pregnancy is a matter of conscience. The Oxford English Dictionary defines conscience as “[a] person’s moral sense of right and wrong, viewed as acting as a guide to one’s behaviour”. The law protects freedom of conscience because it is central to a legitimate and well-functioning democracy.1 Freedom of conscience is an internationally recognised human right ­ (see Article 18 of the International Covenant on Civil and Political Rights). In New Zealand, it is protected by s 13 of the NZBOR Act. 1

R v Big M Drug Mart Ltd [1995] 1 SCR 295 at 346.

154  Rhonda Powell

[11] Unexpected pregnancy affects women differently to men because, in typical circumstances, only women can become pregnant.2 Further, in most cases, parental burdens are not equally shared between men and women. The legal framework for abortion is therefore more significant for women than for men. [12] Access to safe and legal abortion is a matter of gender equality because the ability of a woman to control her reproductive life is central to her ability to participate in society on an equal basis with men.3 In R v Morgentaler, Canadian Supreme Court Justice Wilson put it this way: “[t]he right to reproduce or not to reproduce … is properly perceived as an integral part of modern woman’s struggle to assert her dignity and worth as a human being”.4 [13] For these reasons and others, access to safe and legal abortion was a key women’s rights issue during the 20th century and, as this dispute illustrates, it continues to be an important issue for women today. Legal regulation of abortion [14] The primary regulatory framework for abortion in New Zealand is the CSA Act, which implements the recommendations of the Report of the Royal Commission of Inquiry into Contraception, Sterilisation and Abortion in New Zealand (Royal Commission of Inquiry in Contraception, Sterilisation and Abortion, Wellington, 1977). In its report, the Royal Commission considered a range of issues related to the regulation of abortion. These issues included uncertainties in interpretation of the law, application and practical working of the law, the incidence of illegal abortions, the characteristics of women seeking abortion, the legal status of the unborn child, the morality of abortion, the rights of pregnant women and health professionals’ freedom of conscience. [15] It is clear both from the legislative background and from the text, that Parliament intended the CSA Act to liberalise access to abortion and ensure that abortion be available to women who seek it, if they meet the ­statutory 2 3 4

Subject of course to any technological advances. See the discussion of United States Supreme Court Justice Ginsberg in Gonzales v. Carhart 550 US (2007) at 4 quoting Planned Parenthood of Southeastern Pennsylvania v. Casey 505 US 833 (1992). R v Morgentaler [1988] 1 SCR 30 at 172 (emphasis in original).

Hallagan v Medical Council of New Zealand—Judgment 155

criteria. For example, the CSA Act establishes a Supervisory Committee whose functions include “to take all reasonable and practicable steps to ensure that sufficient and adequate facilities are available throughout New Zealand for counselling women who may seek advice in relation to abortion” (s 14(1)(e)). The Supervisory Committee is also tasked with drawing up a list of “certifying consultants” whose role is to determine whether the statutory criteria for abortion are met, and with making sure that “every woman seeking an abortion has her case considered expeditiously” (s 30(2)) and “without involving her in considerable travelling or other inconvenience” (s 30(4)(b)). [16] In his affidavit in support of the Medical Council, Professor Campbell stated that some women have difficulty accessing abortion services. The applicants deny this. Although anecdotes were relayed, I have not been presented with reliable evidence about how common it is for New Z ­ ealand women to experience difficulty accessing timely consideration of their request for an abortion. This evidence would have helped me to understand the practical impact of the legal rules upon women, which is relevant to the question of whether any limitation on doctors’ rights is justified. Academic research has established that women in regions that do not offer abortion services travel on average 221 km to access these services and that three of the five regions that do not offer abortion services have a higher than ­average Māori population.5 Doctors’ duties [17] The medical profession is highly regulated and subject to a range of legal and ethical duties. Among these duties are fiduciary duties to the patient, which require a doctor to act in the patient’s best interests, subject to patient consent. Fiduciary duties arise from the relationship of trust and reflect the inherent vulnerability of the patient due to the unequal power and knowledge between doctor and patient, and, importantly, the fact that doctors are gate-keepers to healthcare services, including abortion services. [18] Other duties are set by the common law and by legislation such as the Code, which sets out the rights of patients, including rights to services of

5

Martha Silva and Rob McNeill, “Geographical access to termination of pregnancy services in New Zealand” (2008) 32 Australian and New Zealand Journal of Public Health 519.

156  Rhonda Powell

an appropriate standard (Right 4) and effective communication (Right 5). Right 6 is particularly relevant to this case. It reads: Right to be fully informed (1) Every consumer has the right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive …

A woman with an unplanned pregnancy who consults a doctor for advice about abortion would reasonably expect to be told if that doctor’s beliefs meant that the doctor would be reluctant to help her access abortion services. [19] Doctors also owe ethical duties to patients including duties to do no harm, to be honest, to keep patient information confidential and not to engage in sexual relationships with patients. [20] One of the roles of the Medical Council, as set out in s 118(i) of the HPCA Act, is “to set standards of clinical competence, cultural competence, and ethical conduct to be observed by health practitioners of the profession”. The Health Practitioners Disciplinary Tribunal, the Medical Council’s Professional Conduct Committees and the Health and Disability Commissioner may take into account the Medical Council’s standards in disciplinary proceedings. [21] The Medical Council may sometimes set practice standards that go beyond the legal minimum. An example is the duty not to enter into sexual relationships with patients. This is not prohibited by law but the Medical Council has nevertheless issued statements, including “Good Medical Practice” and “Sexual Boundaries in the Medical Practitioner-Patient Relationship”. Indeed, if the Medical Council were unable to set standards that go beyond the words of relevant legislation, its role in standard setting as required by s 118(i) of the HPCA Act would be meaningless. Conscientious objection to abortion [22] Some people, including some doctors, hold strong views that abortion is morally wrong. The conviction with which this view is held by the applicants is clear from the evidence before me. As discussed in paragraph [10], I have no doubt as to the importance of protecting freedom of conscience in New Zealand. [23] The role of doctors who conscientiously object to abortion has been defined in legislation since 1977. In addition to specific provisions in the

Hallagan v Medical Council of New Zealand—Judgment 157

CSA Act and the HPCA Act, this freedom is now protected by ss 13 and 15 of NZBOR Act. [24] Although conscientious objection to abortion may arise from religious beliefs, this does not elevate it above other matters of conscience because in law, freedom of thought, freedom of conscience and freedom of religion are protected on an equal basis.6 There is no legal hierarchy between a religious-based objection to abortion and a woman’s conscientious choice about whether to continue an unplanned pregnancy. [25] The legal issues, to which I now turn, must be understood in the context of the range of legal and ethical rights and duties that apply to doctors in their dealings with patients, Parliament’s intention being to ensure that New Zealand women may have abortions when they meet the statutory criteria, and the importance of access to abortion for New Zealand women. What duties does the law impose upon a doctor who has a conscientious objection to abortion, if that doctor is approached by or on behalf of a woman seeking advice about abortion? The legislative provisions [26] The most obvious starting point is the CSA Act. According to s 2: abortion law means every provision of— (a) sections 10 to 46 of this Act; and (b) sections 182 to 187A of the Crimes Act 1961

Section 187A of the Crimes Act sets out the legal grounds for abortion. Sections 10 to 46 of the CSA Act set out the legal procedure for authorising abortions. [27] The long title of the CSA Act sets out its purposes, which include “to provide for the circumstances and procedures under which abortions may be authorised”. Abortion may only be performed in a licensed institution (s 18) and after it has been authorised by two certifying consultants (s 29), one of whom must be a practising obstetrician or gynaecologist (s 32). 6

R (on the application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246 at [77] per Baroness Hale of Richmond.

158  Rhonda Powell

[28] The procedure which doctors (who will often but not always be general practitioners) must follow when approached by or on behalf of a woman ­seeking an abortion is set out in s 32 of the CSA Act. The most relevant subsections read: Procedure where woman seeks abortion (1) Every medical practitioner (in this section referred to as the woman’s own doctor) who is consulted by or in respect of a female who wishes to have an abortion shall, if requested to do so by or on behalf of that ­female, arrange for the case to be considered and dealt with in accordance with the succeeding provisions of this section and of section 33 of this Act. (2) If, after considering the case, the woman’s own doctor considers that it may be one to which any of paragraphs (a) to (d) of subsection (1), or (as the case may require) subsection (3), of section 187A of the Crimes Act 1961 applies, he shall comply with whichever of the following provisions is applicable, namely: (a) Where he does not propose to perform the abortion himself, he shall refer the case to another medical practitioner (in this section referred to as the operating surgeon) who may be willing to perform an abortion (in the event of it being authorised in accordance with this Act); or (b) Where he proposes to perform the abortion himself (in the event of it being authorised in accordance with this Act), he shall— (i)

If he is himself a certifying consultant, refer the case to one other certifying consultant (who shall be a practising obstetrician or gynaecologist if the woman’s own doctor is not) with a request that he, together with the woman’s own doctor, determine, in accordance with ­section 33, whether or not to authorise the performance of an a­ bortion; or

(ii) If he is not himself a certifying consultant, refer the case to 2 certifying consultants (of whom at least one shall be a practising obstetrician or gynaecologist) with a request that they determine, in accordance with section 33, whether or not to authorise the performance of an abortion.

Section 32 also provides for disagreement between certifying consultants and referral to a third certifying consultant for resolution.

Hallagan v Medical Council of New Zealand—Judgment 159

[29] The applicants submit that s 32 should be read together with s 46(1) of the CSA Act and s 174 of the HPCA Act. Section 46(1) of the CSA Act reads: Conscientious objection (1) Notwithstanding anything in any other enactment, or any rule of law, or the terms of any oath or of any contract (whether of employment or otherwise), no medical practitioner, nurse, or other person shall be under any obligation— (a) To perform or assist in the performance of an abortion or any operation undertaken or to be undertaken for the purpose of rendering the patient sterile: (b) To fit or assist in the fitting, or supply or administer or assist in the supply or administering, of any contraceptive, or to offer or give any advice relating to contraception,— if he objects to doing so on grounds of conscience.

[30] Section 174 of the HPCA Act reads: Duty of health practitioners in respect of reproductive health services (1) This section applies whenever— (a) a person requests a health practitioner to provide a service ­(including, without limitation, advice) with respect to contraception, sterilisation, or other reproductive health service; and (b) the health practitioner objects on the ground of conscience to providing the service. (2) When this section applies, the health practitioner must inform the person who requests the service that he or she can obtain the service from another health practitioner or from a family planning clinic.

[31] The applicants submit that when a doctor who has a conscientious objection to abortion is approached by or on behalf of a woman seeking advice about abortion, the doctor may first discuss the matter with her, and may consider whether the statutory grounds for abortion apply. If the woman then requests for her case to be considered under s 32(1) and the doctor objects to considering her case (invoking s 46(1)), or if the doctor considers her case and is of the opinion that the statutory grounds for abortion may apply but objects to making a referral under s 32(2) (invoking s 46(1)), as required by s 174 of the HPCA Act the doctor must instead

160  Rhonda Powell

inform the woman that she can obtain that service from another doctor or from a family planning clinic. The applicants submit that this interpretation must be given in order to protect the applicants’ rights under ss13 and 15 of the NZBOR Act. [32] The respondent submits that s 32(1) requires the doctor to arrange for a woman’s case to be considered and dealt with. The doctor may consider her case personally, in which case, if the doctor forms the opinion that the statutory grounds may apply, the doctor is under a duty to comply with s 32(2), including referring the woman to another doctor. ­Section 46(1) is not invoked by either arranging or referring because neither of these amounts to assisting in the p­ erformance of an abortion. Section 174 of the HPCA Act imposes a duty on doctors but does not confer a right which overrides s 32. The respondent submits that the statement, which is defined by reference to the CSA Act, gives effect to the rights of doctors and patients compatibly. [33] I am not convinced that the legislative provisions can be read together in the way in which the applicants suggest. To do so strains the language of the CSA Act and ignores the purposes of both Acts. Neither am I convinced that the NZBOR Act requires me to take such an interpretation. Let me first address s 174 of the HPCA Act, which I consider to be a red herring. The role of the HPCA Act [34] In contrast to the CSA Act, whose purposes relate to the regulation of reproductive health services, the purposes of the HPCA Act relate to the regulation of health practitioners. The HPCA Act covers registration, competence and complaints, as well as related administrative systems. The principal purpose, as set out in s 3(1), is “to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions”. [35] Section 174 is not an abortion-specific provision and is not part of the definition of “abortion law” in s 2 of the CSA Act. Section 174 is broader than s 32 of the CSA Act in three ways: (a) it applies not only to abortion but also to “contraception, sterilisation and other reproductive health services”, including assisted reproduction;

Hallagan v Medical Council of New Zealand—Judgment 161

(b) it applies to health practitioners, not only doctors. ‘Health practitioner’ is defined in s 2 and includes doctors, nurses, dentists, osteopaths, pharmacists and midwives; and (c) it applies to advice. [36] Section 174 is not aimed at protecting the rights of doctors. It is aimed at protecting patients’ rights of access to health information and reproductive healthcare. Section 174 sets the minimum standard that health practitioners (not only doctors) must meet in relation to reproductive health services (not only abortion) despite any conscientious objection to the service in question. [37] However, in the case of doctors, that duty is not exhaustive. The doctor is still subject to the duties set out in s 32 of the CSA. Parliament could have included the words “only” or “solely” in setting out the duties in s 174 and its omission to do so must be seen as deliberate. In fact, the contention that s 174 sets out the only duties of a doctor in the circumstances in question is clearly misconceived. All of the general duties that fall upon doctors by virtue of legislation such as the Code and standards set by the Medical Council still apply, as do the duties under s 32 of the CSA Act. [38] The rules of statutory interpretation dictate that the particular prevails over the general.7 To the extent that there is any inconsistency, the specific duties that apply to doctors in relation to abortion in s 32 of the CSA Act prevail over the general duties that apply to health practitioners in relation to reproductive health services under s 174 of the HPCA Act. [39] This interpretation is supported by the history of s 174, an equivalent of which has been in place since the time the CSA Act was passed. The Medical Practitioners Act 1968 set out an equivalent duty in s 43A(1) and then stated in s 43A(2) that: Without limiting section 43 of this Act, every medical practitioner who fails to comply with subsection (1) of this section is guilty of professional misconduct, and shall be dealt with by the Disciplinary Committee …

Although the provisions about professional discipline are dealt with ­separately within Part 4, the fact remains that the HPCA Act is about professional c­ ompetence and discipline. 7

R Carter, Burrows & Carter–Statute Law in New Zealand (5th ed, LexisNexis, ­Wellington, 2015), 457–461.

162  Rhonda Powell

What duties does the CSA Act impose on doctors who have a conscientious objection to abortion? [40] Section 32 of the CSA Act clearly applies to all doctors. Those who hold a conscientious objection to abortion are not exempt. However, s 32(1) provides a doctor who has a conscientious objection with an avenue to avoid clinical involvement in a potential abortion. Section 32(1) permits the doctor to “arrange for the [woman’s] case to be considered and dealt with” by another doctor. As submitted on behalf of the Medical Council, that other doctor would then stand in the shoes of the woman’s own doctor for the purposes of the legislation. [41] The duty to “arrange for the [woman’s] case to be considered and dealt with” is administrative in nature. It refers to practical steps to ensure that the woman receives the information and healthcare that she is entitled to receive expeditiously and without undue inconvenience. Nursing or administrative staff may undertake the arrangements on behalf of the doctor. It is not a duty to refer the woman to another doctor because a referral would necessitate the exercise of clinical judgement about whether the woman may meet the statutory test for abortion, and the assumption of clinical responsibility for the woman’s care. [42] For a doctor who has a conscientious objection to abortion, this is the most appropriate course to take. It protects the woman from the risk that the doctor’s personal convictions may overshadow their clinical judgement. It also respects the doctor’s right to freedom of conscience. [43] Nevertheless, the legislation leaves open a second course of action. The doctor may choose to put aside their conscientious objection and undertake clinical responsibility and consider the woman’s case personally (subject to the caveat in the next paragraph). In this case, if the doctor considers that the woman may meet the statutory criteria, then the doctor must refer the woman to another doctor in accordance with s 32(2). A doctor who is unwilling to make this referral should not become clinically involved. [44] As stated in paragraph [18], Right 6 of the Code imposes a duty on healthcare providers to offer the information that “a reasonable consumer, in that consumer’s circumstances, would expect to receive”. A woman who approaches a doctor to request an abortion would reasonably expect to be advised if the doctor has a conscientious objection to abortion. This means a doctor who is proposing to consider a woman’s case has a duty to disclose

Hallagan v Medical Council of New Zealand—Judgment 163

any conscientious objection they may hold. It may be that in these circumstances, the woman would prefer for another doctor to consider her case, in which case the s 32(1) duty to arrange would apply. [45] This is the natural meaning of s 32. However, in order to properly dispose of the application, I will also consider the applicants’ submissions in relation to the effects of s 46 of the CSA Act and ss 13 and 15 of the NZBOR Act on the interpretation of s 32. Does s 46 limit the duties under s 32? [46] The applicants submit that the obligations to arrange in s 32(1) and to refer in s 32(2) are subject to the exception in s 46(1)(a). The respondent submits that s 46(1)(a) has no applicability to these preliminary steps. [47] Section 46(1)(a) must also be understood in the context of s 46 as a whole, and in particular ss 46(2) and (3), which are directed at protecting employees of health services who have refused to participate in certain reproductive health procedures in the context of their employment. Those subsections read: (2) It shall be unlawful for any employer— (a)

To deny to any employee or prospective employee any employment, accommodation, goods, service, right, title, privilege, or benefit merely because that employee or prospective ­employee objects on grounds of conscience to do any act referred to in s­ ubsection (1); or

(b) To make the provision or grant to any employee or prospective employee of any employment, accommodation, goods, service, right, title, privilege, or benefit conditional upon that other person doing or agreeing to do any thing referred to in that s­ ubsection. (3) Every person who suffers any loss by reason of any act or omission rendered unlawful by subsection (2) shall be entitled to recover damages from the person responsible for the act or omission.

[48] Section 46 was drafted in response to submissions made to the Royal Commission about the potential employment implications of liberalising abortion on health practitioners.8 The Royal Commission took the view that 8

Contraception, Sterilisation and Abortion in New Zealand: Report of the Royal ­Commission of Inquiry (E26, Government Printer, Wellington, 1977).

164  Rhonda Powell

“no medical practitioner or member of the nursing staff of any institution who objects on sincere conscientious grounds should be obliged to take part in any operation for abortion …”.9 Section 5(1) of the Interpretation Act 1999 states that “The meaning of an enactment must be ascertained from its text and in the light of its purpose.” The purpose of s 46 is to protect employees against losing their jobs for refusing to perform an abortion or sterilisation procedure. [49] The scheme of s 46 also supports a narrow reading. First, compared to s 46(1)(a) which deals with abortion, s 46(1)(b), which deals with contraception, is broader. The doctor need not “offer or give any advice relating to ­contraception”. Parliament must have made this distinction intentionally. Section 46(1)(a) does not excuse the doctor from giving advice about abortion, including information about how to access alternative care as required by s 32(1) or the information required to be given by s 174 of the HPCA Act. [50] Secondly, while s 46(1)(a) uses the words “perform or assist in the performance” of an abortion procedure, s 46(1)(b) uses the words “fit or assist in the fitting of” a contraceptive device, and to “supply or administer or assist in the supply or administering”. Although the legislation differentiates between the different activities, it also unites them in so far as they all clearly refer to processes: “performing” an abortion, “fitting” contraception, “supply or administering” contraception. In this context, it is not credible to suggest that s 46(1)(a) encompasses the preliminary consultation with a doctor and any administrative duties that the doctor may perform to ensure that the woman receives the care to which she is entitled. [51] Abortion is defined in s 2: abortion means a medical or surgical procedure carried out or to be carried out for the purpose of procuring— (a)

the destruction or death of an embryo or fetus after implantation; or

(b) the premature expulsion or removal of an embryo or fetus after implantation, otherwise than for the purpose of inducing the birth of a fetus believed to be viable or removing a fetus that has died

9

At 314.

Hallagan v Medical Council of New Zealand—Judgment 165

[52] Keeping the statutory purpose and the internal context in mind, on the natural reading of the words, s 46(1)(a) means that a doctor with a conscientious objection to abortion comes under no duty to perform or to assist in the performance of a medical procedure carried out for the purpose of terminating a viable pregnancy and will be protected against employment consequences of any refusal to do so. This must necessarily include preliminary steps that form part of the medical procedure itself. It is not necessary for me to draw the line precisely because it is clear that the words “assist in the performance of an abortion” do not extend to the initial duties of a doctor who is approached by a woman who wishes to have an abortion, as set out in s 32. [53] In Janaway v Salford Area Health Authority,10 the House of Lords took a similar approach to the interpretation of the words “to participate in any treatment” in s 4(1) of the (British) Abortion Act 1967. Although the words are different, the principles derived from Janaway are still relevant. In both cases, the legislative provisions addressed the potential employment consequences of refusing to be involved in an abortion procedure. The effect of the NZBOR Act [54] The applicants submit that s 6 of the NZBOR Act requires that I give the CSA Act the meaning that is most consistent with the rights to freedom of conscience and freedom to manifest one’s religion protected by ss 13 and 15 of the NZBOR Act, which read: 13  Freedom of thought, conscience, and religion Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference. 15  Manifestation of religion and belief Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

[55] In R v Hansen, the Supreme Court set out the interpretative procedure when it is claimed that a legislative provision limits a right protected by the NZBOR Act. The first step is to compare the meaning of the legislative provision with the right to see whether, on its natural meaning, the ­legislative 10

Janaway v Salford Area Health Authority [1989] AC 537.

166  Rhonda Powell

provision apparently curtails the right, so as to engage the interpretative provisions of NZBOR Act (ss 4, 5 and 6). Then:11 If these provisions are engaged, the natural meaning may be adopted only in one of two circumstances. Either an application of s 5 may reveal that, because the limit placed by the meaning upon the right is a “demonstrably justified” one, its adoption will not in fact result in inconsistency with the Bill of Rights or, failing that, the provision may not be reasonably capable of bearing any other meaning.

[56] Section 13 is concerned with people’s internal thoughts and beliefs. Accordingly, the rights contained in s 13 are not curtailed by s 32 of the CSA Act because it does not prevent the applicants from holding any particular belief, including a belief that abortion is morally wrong. [57] Section 15 is concerned with the external manifestation of religion and belief. It protects the ability to manifest religion or belief in certain circumstances, including in “practice”. I accept the applicants’ submission that whether or not s 32 limits their right to manifest their religion or belief should be determined with an emphasis of the effect on individuals and that a refusal to become involved with an abortion procedure on grounds of conscience would amount to a manifestation of religion or belief in practice. [58] However, the scope of the freedom to manifest religion or belief is constrained by other provisions of the NZBOR Act, including s 5.12 ­ Section 5 states that the rights are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Only if the limitation cannot be justified must I consider whether s 32 can be given a more rights-compliant meaning, bearing in mind that s 6 of the NZBOR Act does not require me to take a meaning that is not open in light of the text and purpose of the CSA Act.13 [59] The first question is whether the limitation is prescribed by law. The applicants submit that the statement is not a source of law and therefore cannot justify a limitation of the applicants’ rights. This argument must be rejected because the statement is an elaboration of the duties set out in the CSA Act and the HPCA Act. It is these laws which must be scrutinised for

11 12 13

R v Hansen [2007] 3 NZLR 1 at [57] per Blanchard J. At [59] per Blanchard J. At [61] per Blanchard J.

Hallagan v Medical Council of New Zealand—Judgment 167

compliance with the NZBOR Act. The statement can then be examined to ensure that it is consistent with the law. [60] In evaluating whether or not a lawful limitation on a right is justified, in R v Hansen the Supreme Court affirmed the approach outlined by Tipping J in Moonen v Film and Literature Board of Review (No 1):14 [It] is desirable first to identify the objective which the legislature was endeavouring to achieve by the provision in question. The importance and significance of that objective must then be assessed. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledgehammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected.

[61] In this case, the objectives of the limitation on rights are twofold. The first stems from the fact that limitation of doctors’ freedom of conscience arises in the context of a voluntarily undertaken career in publicly-funded healthcare. Parliament has determined that women be able to have their requests for abortion considered without undue inconvenience, expense or delay. In drafting the CSA Act, Parliament sought to ensure that pregnant women should not be negatively affected by the fact that the doctor that they first consulted held a conscientious objection to abortion. [62] Additionally, the limitation seeks to uphold fundamental characteristics of the doctor-patient relationship, and in particular the duties to avoid conflicts of interest and to provide patients with full information about their health conditions. In doing so, it protects a number of patient rights, which are now set out in law as the right to effective communication (Right 5 of the Code), the right to be fully informed (Right 6 of the Code) and the right to services of an appropriate standard (Right 4 of the Code). The right to seek information is also protected by s 14 of the NZBOR Act. Importantly, s 13 of the NZBOR Act also protects women’s right to freedom of conscience over whether to have an abortion. [63] The importance of the first objective (to ensure access to ­abortion ­services) is evident from the significance of access to abortion for women, which reflects the value we place on human dignity and equality in New ­Zealand. The importance of the second objective is also clear; patient 14

Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 at 18.

168  Rhonda Powell

rights have a unique importance in New Zealand, demonstrated by the fact that neither the United Kingdom, Australia nor Canada have enforceable codes of patient rights. The Code was drafted as a direct result of the “unfortunate experiment” in which New Zealand women’s lives were put at stake by doctors who deliberately withheld information about the experimental care they were providing.15 In this case, the limitation of rights has a clear and direct rational relationship with both of these objectives. [64] Although in Moonen v Film and Literature Board of Review (No 2) the Court of Appeal cast some doubt over the need to show that the limit is the least possible limitation,16 in this case the requirements on doctors are the minimum necessary to make sure that women are not disadvantaged. If the duties were limited to the s 174 duties, as advocated on behalf of the applicants, women’s expedient and convenient access to abortion services would be affected, and women’s rights as patients would be curtailed. The limitation is therefore also not disproportionate to the statutory objective. [65] Section 32 represents the balance determined by Parliament between the rights of women and those of doctors who have a conscientious objection to abortion. The most recently available statistics record that 17,550 abortions were performed in New Zealand in 2009,17 which implies that requests for abortion are relatively frequent, particularly in general practice. If the duty to make arrangements is unacceptable to a doctor, it remains open to them to choose an alternative medical specialty. It is clear that the limit placed on doctors’ rights by s 32 can be demonstrably justified in a free and democratic society and so the natural meaning (as outlined above) applies. Section 32 is not inconsistent with the NZBOR Act. I am therefore not required to consider whether another meaning that is more consistent with the NZBOR Act is available under s 6. Is the statement inconsistent with these legal duties? [66] In exercise of its statutory functions under s 118(i) of the HPCA Act, the Medical Council is entitled to determine standards for the practice of 15 16 17

As recommended by the Cartwright Report: The Report of the Committee of Inquiry into Allegations Concerning the Treatment of Cervical Cancer at National Women’s Hospital and into Other Related Matters (Auckland, 1988). Moonen v Film and Literature Board of Review [2002] 2 NZLR 754 at 759–760. Statistics New Zealand Abortion Statistics: Year ended December 2009 (17 June 2010).

Hallagan v Medical Council of New Zealand—Judgment 169

medicine in New Zealand. It must do so within legal boundaries, including the boundaries of reasonableness. [67] The applicants made detailed submissions on the wording of the statement and the ways in which, in their view, the statement is inconsistent with the law. Many of the issues relate to the requirement to do more than the minimum required by s 174 of the HPCA Act. The paragraph most at issue is ­paragraph 32. That reads: Your obligations under paragraph 28 of this statement mean that if you have a conscience objection to abortion and you are consulted by or on behalf of a pregnant woman who wishes to have an abortion, you must, if requested to do so by or on behalf of that woman, arrange for the woman’s case to be considered by another medical practitioner who is able to ­consider whether an abortion may be lawfully performed and take the appropriate steps required by the Contraception, Abortion and Sterilisation Act 1977.

Although paragraph 32 of the statement refers to obligations under paragraph 28, it was accepted by all parties that this is intended to refer to paragraph 27. [68] Paragraph 32 of the statement broadly adopts the wording of s 32 of the CSA Act with one change: paragraph 32 denies the possibility for the doctor to consider the woman’s case personally. This is inconsistent with s 32, which leaves the option open, although the ability for the doctor to do so is subject to the woman’s informed consent. Paragraph 32 of the statement does therefore misrepresent the law. [69] The applicants also object to the mandatory language used in the statement, such as “shall”, “should” and “must”. They claim that this makes the statement coercive. As discussed in paragraph [21] above, the Medical Council is required to set standards of practice. Doctors are required to practise within a legal, ethical and regulatory framework, which is replete with duties. When generalised to other legal duties upon doctors, for instance, the duty of confidentiality, it becomes clear that the applicants’ argument that mandatory duties on doctors are coercive is misconceived. [70] The applicants object to various other paragraphs of the statement which they say require the doctor to take steps that go beyond the minimum duty in s 174 of the HPCA Act. The requirements in the statement for a doctor to take practical steps to ensure that a woman seeking advice about abortion is able to have her case considered expeditiously, notwithstanding

170  Rhonda Powell

that the doctor they first approach may have a conscientious objection to abortion, are consistent with the tenor of the CSA Act. They are examples of the sorts of arrangements that are contemplated by s 32(1). [71] It was submitted on behalf of the Medical Council that the statement gives effect to and is consistent with the rights of doctors under s 46 of the CSA Act and the duties of doctors under s 32 of the CSA Act and s 174 of the HPCA Act by: (a) Ensuring patients can still access requested or needed services notwithstanding their doctor’s conscience objection; (b) Recognising a doctor’s right to conscientious objection while limiting the negative impact on the patient’s right to access the requested or needed service; (c) Recognising the legislative duty to inform the patient so that she has information that she could reasonably expect to receive in the circumstances …; (d) Recognising the duty to provide services consistent with the patient’s needs in a manner that minimises the potential harm to the patient, free from any abuse of trust or breach of fiduciary duty …; and (e) Recognising the legislative duty under s 32 of the CSA Act to arrange for a patient to see another doctor where a patient’s case is to be considered for abortion. I agree. However, the statement is inconsistent with the legislative framework in one respect and paragraph 32 must be amended to leave open the option for the doctor to consider the woman’s case personally with her consent, having disclosed their conscientious objection, provided that the doctor is willing to follow through with a referral if the woman’s case meets the statutory criteria for abortion. In effect, this course of action would require the doctor to put their conscientious objection to one side. [72] Accordingly, there will be an order directing the Medical Council to reconsider paragraph 32 of the statement and, in that reconsideration, to take account of the terms of this judgment. [73] Costs are reserved. The parties may submit memoranda if they are unable to agree. R L Powell J

10 Commentary on Re W [PPPR] Caring for the Pregnant Woman ROSEMARY HUNTER

Background to the Case Re W [PPPR] concerned a woman who was an involuntary inpatient in a mental health facility, who was also eight months pregnant.1 She was receiving compulsory treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1991 (NZ) (MHA) and her clinicians believed that due to her psychosis and chronic delusions, she lacked capacity to make decisions about her forthcoming labour and delivery. The Auckland Area Health Board therefore sought a range of orders under s 10 of the Protection of Personal and Property Rights Act 1988 (NZ) (PPPRA) for her treatment during the final stages of her pregnancy. The orders sought were wide-ranging and intrusive. Among other things, they would authorise medical and nursing staff, regardless of Ms W’s consent, to induce labour, to perform a caesarean section, and to administer whatever drugs, medication and anaesthetics as were, in their opinion, necessary to ensure the safe delivery of her child. Acting in accordance with the orders would insulate medical and nursing staff from liability to Ms W in tort and potential liability to criminal charges, which would otherwise arise from bodily intrusions to which a person has not consented.2 The case arose not long after the enactment of the PPPRA, which was a major reform of the law dealing with incapacity. The previous law had dealt exclusively with issues relating to the property of incapacitated persons,3 with personal matters able to be addressed only via the High Court’s inherent jurisdiction. The PPPRA replaced the old law based on protection and paternalism with a new regime emphasising rights, autonomy and capacity. It begins in s 5 with a presumption of competence, that is, a presumption that everyone has capacity: (a) to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; and (b) to communicate decisions in respect of those matters.

Anyone claiming a patient lacks capacity bears the onus of rebutting this presumption. 1  Re W [PPRR] (1993) 11 FRNZ 108 (FC). I am indebted to Holly Hedley and Rhonda Powell for their assistance in writing this commentary. 2  Re “T” [1992] 3 WLR 782. 3  Aged and Infirm Persons Act 1912 (NZ); Mental Health Act 1969 (NZ), pt 7.

172  Rosemary Hunter Section 8 specifies that in exercising its jurisdiction under the PPPRA, the Court has two objectives. First, it must ‘make the least restrictive intervention possible in the life of the person in respect of whom the application is made, having regard to the degree of that person’s incapacity’. Second, it must ‘enable or encourage that person to exercise and develop such capacity as he or she has to the greatest extent possible’. These objectives mean that, if in doubt, the court should err on the side of minimal or non-intervention, consistent with maximising the autonomy of the person concerned. Further, while a person may partly lack capacity, they may nevertheless retain other abilities which must be recognised and enabled to operate as fully as possible. Part 9 of the Act provides for people to make enduring powers of attorney with respect to their property and welfare at a time when they have capacity, in anticipation of a time when they may not do so, such as the onset of psychosis or dementia. Apart from such an exercise of autonomy, the Family Court is given power to make two kinds of orders under the PPPRA in the event of a person’s incapacity. It may make stand-alone personal orders under s 10 of the kind sought in Re W with respect to specific matters. The Court has jurisdiction to make such an order if the person in question ‘wholly or partially’ lacks capacity to make the relevant decision.4 Alternatively, the Court may appoint a welfare guardian under s 12. This is a more general and longer-term intervention, and the test for a guardianship appointment is accordingly stricter: the person in question must ‘wholly’ lack decisionmaking capacity with respect to the aspect of their personal life that is covered by the order. Among other things, s 18 provides that a welfare guardian must act in the person’s best interests. While the obligation is placed on a welfare guardian to act in the person’s best interests, the PPPRA does not require the Court in making decisions to apply a ‘best interests’ standard. Arguably, the principle of best interests is paternalistic. It requires an objective decision about what is best for a person, which may conflict with the twin objectives of making the least restrictive intervention possible and enabling the greatest possible exercise and development of the capacities the person does have. Thus, its exclusion from the PPPRA may be understood to be deliberate.5 There is conflicting High Court authority on this point. In Re A, B and C (Personal Protection) the Court considered it a necessary implication that the person’s best interests should be achieved.6 However in R v R, the Court rejected the notion that best interests should be read into the express statutory language of the PPPRA.7 Finally, the PPPRA contains various procedural rules designed to reinforce the rights of the person alleged to lack capacity, including a right to legal representation (s 65) and the provision that that person ‘shall be present throughout the hearing’ unless excused or excluded by the court (s 74). In deciding whether a person lacks capacity, the court may also seek further medical, psychiatric or psychological evidence about the person if satisfied that it is necessary for the proper disposition of the application (s 76). 4 

PPPRA 1993, s 6(1)(a). See B Atkin and A-M Skellern, ‘Adults with Incapacity: The Protection of Property and Personal Rights Act’ in J Dawson and K Gledhill (eds), New Zealand’s Mental Health Act in Practice (Wellington, Victoria University Press, 2013) 337, 343–4. 6  Re A, B and C (Personal Protection) [1996] 2 NZLR 354, [1996] NZFLR 359 (HC). 7  R v R [2004] NZFLR 797 (HC) [60]. And see further B Atkin, ‘Adult Guardianship: Some Brief Comparisons with the Law of Children’ (2011) 7 New Zealand Family Law Journal 90. 5 

Re W [PPPR]—Commentary 173 In addition to the PPPRA, the Re W case must be seen against a broader background of related developments in New Zealand at the time. In 1988, the same year as the PPPRA was enacted, the Commission of Inquiry into the treatment of women with cervical cancer at Auckland Hospital, headed by then Judge Silvia Cartwright, delivered its report.8 Professor Herbert Green, a gynaecology and obstetrics specialist at Auckland Hospital, was found to have essentially experimented on women with early stage cervical cancer without their knowledge or consent, resulting in premature deaths and long-term impairments to health. The scandal was first exposed by women’s health advocates Sandra Coney and Phillida Bunkle,9 and their work became a major catalyst for feminist protest and activism around the many ways in which women’s rights and autonomy were disregarded in health care. Other outcomes from the Cartwright Inquiry included the establishment of a national cervical screening program, the setting up of independent health ethics committees and processes for obtaining ethical approval for all research on human subjects, and the creation of the office of the Health and Disability Commissioner,10 who in 1996 promulgated a Code of Health Consumers’ Rights which enshrined informed consent.11 The earlier MHA (1991) reformed mental health laws and also contained a code of rights for mental health patients which was in force at the time of Re W. Furthermore, the New Zealand Bill of Rights Act (NZBORA) enacted in 1990, enshrined the principle of bodily integrity and ­freedom from coercive medical procedures by including in s 11 the right to refuse to undergo any medical treatment.

The Original Decision The Auckland Area Health Board’s application came before Judge Bremner in the District Court. Although it was not an emergency application, it was time-critical in that the birth of Ms W’s child was impending, and the medical team needed clarity about what they could lawfully do once she went into labour. As Judge Bremner noted, medical decisions during labour were ‘not matters which can be weighed, considered and second opinions obtained because the labour and birth is continuing’.12 At an earlier stage in the proceedings, the Judge had made interim orders for Ms W’s medical treatment and separate counsel had been appointed to represent the interests of the unborn child. On the question of the court’s jurisdiction, Judge Bremner relied on the evidence from three psychiatrists and a specialist obstetrician that Ms W at least partly lacked capacity to understand the nature and foresee the consequences of decisions in relation to her

8  SR Cartwright (Chair), The Report of the Committee of Inquiry into Allegations Concerning the Treatment of Cervical Cancer at National Women’s Hospital and into other related matters (Wellington, Government Printer, 1988). 9  S Coney and P Bunkle, ‘An Unfortunate Experiment at National Women’s’, Metro (June 1987) 47; see also S Coney, The Unfortunate Experiment: The Full Story Behind the Inquiry into Cervical Cancer Treatment (Auckland, Penguin Books, 1988). 10  Health and Disability Commissioner Act 1994 (NZ). 11  Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (NZ). 12  Re W (n 1) 111.

174  Rosemary Hunter ­ ersonal care and welfare in respect of the final stages of her pregnancy and the birth of her p child. He then turned to the objectives set out in s 8 and concluded that the least restrictive intervention would be to make orders that were limited in scope and operated for a limited period of time; that is, orders relating to matters arising directly from the birth of the child and extending only until the child was born and for a reasonable time thereafter. He noted that the views communicated by Ms W to her legal representative were entitled to be respected but treated them as reinforcing his orders. The fact that she had expressed preferences for the birth in line with those of her obstetrician, and that she had been prepared ‘at least as at some 6 days before the date of the hearing’ to consent to the orders sought, indicated that she had ‘some appreciation of the situation’.13 However, the medical evidence as to her unstable mental state, and the ‘complete unknown’14 of how she would react when labour commenced, meant that the situation could change and orders were still required to provide for her compulsory treatment if necessary. Overall, much of the emphasis in the judgment was on the position of the medical staff treating Ms W and the care and concern they displayed for Ms W was commended by the Judge.

The Feminist Judgment Like Re W, several of the other early cases under the PPPRA concerned issues of women’s reproductive health, including sterilisation, abortion and contraception.15 Holly Hedley’s feminist judgment thus provides a model for a potential feminist approach to decisionmaking under the PPPRA more generally in such cases. Judge Hedley places Ms W (rather than the medical professionals) at the centre of her judgment, maintaining the focus on her throughout rather than using passive language or slipping into discussion of the interests of the baby rather than those of the pregnant woman. Part of this process involves giving Ms W a full name. While the original judgment referred to her simply as ‘W’, Judge Hedley calls her ‘Katrina Williams’, a pseudonym which respects her privacy while also emphasising her personhood. In addition, Judge Hedley pays greater attention to Ms Williams’ circumstances, acknowledging her vulnerability as a pregnant woman subject to a compulsory treatment order, and highlighting the significant and intrusive nature of the orders sought—a point played down by Judge Bremner in the original decision, who referred to labour as ‘a natural phenomenon’, not involving ‘invasive’ or ‘major’ surgery,16 despite the fact that a caesarean section might well fall within that description. The feminist judgment is conscious of the dynamic of a male-dominated legal ­profession making judgements about the capacity of female patients, and of medical decision-making being taken out of women’s hands as demonstrated in the Cartwright

13 ibid. 14 

ibid 110. eg, Re H [1993] NZFLR 225 (FC); Re G [PPPR: hysterectomy] (1993) 10 FRNZ 541 (FC). In addition Re F as cited in Re W (n 1) 111, concerned treatment for breast cancer. 16  Re W (n 1) 111. 15  See,

Re W [PPPR]—Commentary 175 Inquiry. In particular, there is a long history of pregnant women being deprived of control over their own bodies.17 Consequently, rather than taking the medical evidence presented to the Court at face value, Judge Hedley puts that evidence to the test, particularly in light of the fact that the clinicians who provided evidence were psychiatrists working in the f­ acility in which Ms Williams was detained, and thus occupied a considerable position of power in relation to her.18 In this context, the fact that Ms Williams was able to communicate apparently clear wishes and plans to her lawyer may have indicated a lack of trust in her medical team rather than lack of capacity.19 Furthermore, Judge Hedley pays greater attention to the relevance of s 11 of the NZBORA—the right to refuse treatment—than was given by Judge Bremner in the original decision. Although it does not bear directly on the case and was not the subject of detailed submissions, it does form an important context for decision-making, directing attention to ‘the high value that our legal system places upon a person’s right to make their own decisions about medical treatment’.20 She also notes, and queries, Ms Williams’ apparent absence from the hearing contrary to s 74 of the PPPRA. Nevertheless, Judge Hedley does not take a simplistic rights-based approach which might have resulted in the dismissal of the application for want of jurisdiction, in that the presumption of competence was not rebutted. Dismissing the application could put Ms Williams at greater risk if her clinicians were left unsure as to what treatment they could provide, or were required to wait to see if her mental health deteriorated or put in a situation of acting out of necessity. Rather, the feminist judgment seeks a pragmatic solution which will give Ms Williams access to the support she and the baby need. In doing so, it adopts an ethic of care approach21 which attempts to protect Ms Williams’ rights and best interests, while taking into account the needs of the clinicians and the child as well. The solution adopted is to adjourn proceedings to seek further reports under s 76 of the PPPRA. These reports are to be provided by an independent psychiatrist on Ms Williams’ capacity, views and ability to attend court, and by a social worker on Ms Williams’ wider family and support networks. Given the time-critical nature of the decision, Judge Hedley calls for the reports to be ‘progressed with urgency’. An ethic of care approach conceives of individuals as necessarily connected with ­others and reliant on the support provided by relationships, rather than seeing them as essentially isolated and atomistic. Pursuant to this approach, the feminist judgment queries in obiter the appointment of a lawyer to represent the unborn child. Ms Williams is the central figure in the litigation and if she has capacity she is entitled to make her own decisions

17  See, eg, R Scott, ‘Refusing Medical Treatment during Pregnancy and Birth: Ethical and Legal Issues’ in F Ebtahaj et al (eds), Birth Rites and Rights (Oxford, Hart Publishing, 2011) 113; S Meredith, Policing Pregnancy: The Law and Ethics of Obstetric Conflict (Aldershot, Ashgate, 2005); and Lady Hale’s affirmation of the autonomy of pregnant women in Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] 2 WLR 768 [116]. 18 See the acknowledgment of the social and psychological realities of the doctor-patient relationship in ­Montgomery (n 17) [58]. 19  On the importance of trust in healthcare, see M Henaghan, Health Professionals and Trust: The Cure for Healthcare Law and Policy (Abingdon, Routledge, 2012). 20  Judge Hedley, Re Williams [PPPR], this collection, 180. 21  See, eg, C Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, Mass., Harvard University Press, 1993); V Held, The Ethics of Care: Personal, Political, and Global (Oxford, Oxford University Press, 2006); S Sevenhuijsen, Citizenship and the Ethics of Care: Feminist Considerations on Justice, Morality and Politics (London, Routledge, 1998).

176  Rosemary Hunter about the birth. But more fundamentally, Ms Williams clearly has a deep concern with the safe delivery of her child, whereas the appointment of another lawyer tends to separate the interests of Ms Williams from those of the child and to view them as potentially antagonistic rather than interconnected.22 Given this, Judge Hedley expresses the view that the appointment of separate counsel would not usually be required, without completely ruling out this possibility in some set of unforeseen future circumstances. Further, the report sought from the social worker is designed to remedy the lack of ­information provided to the court about the support networks of family members and/or friends who might be available to assist Ms Williams with the birth. Among other things, it might be possible for Ms Williams to grant an enduring power of attorney to a trusted person to make decisions relating to labour and delivery should she subsequently lose capacity, or an appropriate person might be identified who could act as a welfare guardian instead of the court making the personal orders sought under s 10. Although there is limited time available, these options need to be considered in a way which does not conflate least restrictive intervention with best interests, but ensures adequate care and attention to Ms Williams’ rights, needs and relationships.

22  C Wells, ‘On the Outside Looking In: Perspectives on Enforced Caesareans’ in S Sheldon and M Thomson (eds), Feminist Perspectives on Health Care Law (London, Cavendish, 1998) 237.

RE WILLIAMS [PPPR]

District Court, Auckland (FP004/827/93; PPPR004/36/93) Judge H A Hedley

21 June 1993

Gordon for Auckland Area Health Board Rogers for Ms Williams Barry for District Mental Health Nurse Adams for unborn child Doogue to assist the Court JUDGE H A HEDLEY: This is a case about Katrina Williams.1 Ms Williams is 28 years old and 8 months’ pregnant. At the moment, Ms Williams is subject to an in-patient order under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Pursuant to that in-patient order, Ms Williams is currently living in the Mason Clinic, a mental health facility operated by the Auckland Area Health Board. Ms Williams’ medical team have concerns about her impending labour. They report that Ms Williams’ mental state is unstable at present and they do not believe she has sufficient capacity to make her own decisions about her medical care. They are also concerned that Ms Williams’ mental state may deteriorate further in the weeks to come and are anxious about how she might react when her labour commences. For these reasons, the Auckland Area Health Board has applied, on behalf of the clinical team at the Mason Clinic, for a range of personal orders under s 10 of the Protection of Personal and Property Rights Act 1988. The orders sought are broad and very intrusive. If they are granted, the power to make medical decisions for Ms Williams and her baby would be handed over to the clinicians. In essence, granting the orders would allow the clinical team to provide whatever medical interventions they deem are necessary for Ms Williams’ labour and delivery. The choice about what medical interventions a woman wants to receive during her pregnancy and labour is, of course, a deeply personal, and usually private, decision. In fact, a person’s right to make their own decisions about medical treatment is considered so precious that it is expressly protected by s 11 of the New Zealand Bill of Rights Act 1990. As such, applications for orders that intrude upon this right, such as those that are sought in the present case, demand close, compassionate and careful scrutiny. In accordance with s 65 of the Protection of Personal and Property Rights Act, Mr Rogers has been appointed as counsel to represent Ms Williams. In addition, at an initial directions hearing for this matter, Judge Bremner appointed Ms Doogue to assist the Court and Mr Adams to represent Ms Williams’ unborn child. Mr Barry also appeared on behalf of

1

This is a fictitious name used in order to preserve the subject person’s privacy.

178  Holly Hedley the District Mental Health Nurse (because of Ms Williams’ status under the Mental Health (Compulsory Assessment and Treatment) Act). The Protection of Personal and Property Rights Act 1988 Before discussing the detail of the particular application in this case, it is necessary to understand the scheme and spirit of the Protection of Personal and Property Rights Act. The concept that lies at the very heart of this Act is readily apparent from its name. The Act is fundamentally about the protection of rights. In particular, the Act is focussed on protecting the autonomy and rights of people who have mental or intellectual impairments. Judge Inglis aptly captured the protective nature of the Act’s jurisdiction in his recent decision of Re R M S [PPPR] (1993) 10 FRNZ 387, saying at p 388: “… the jurisdiction is protective in two distinct respects. First, the Court may put in place for the benefit of a disabled person measures for the management of that person’s affairs to the extent that there is a shortfall in his or her capacity or abilities. Secondly, and of equal importance, the Court may protect the disabled person from intervention which is not shown to be necessary in the interests of the disabled person or in the public interest. These are two sides of the same protective coin. Protection of the disabled ­person from the consequences of their disability, and protection of the disabled person from intervention which crosses the threshold from protection into gratuitous interference.”

The present case involves an application for orders under s 10(1)(f) of the Act. The ­relevant parts of s 10 provide: “10. Kinds of order (1) On an application for the exercise of a Court’s jurisdiction under this Part of this Act in respect of any person, the Court may, subject to subsection (2) of this section, make any one or more of the following orders: … (f) An order that the person be provided with medical advice or treatment of a kind specified in

the order:

(2) No person (other than the person in respect of whom the application is made) shall be bound by a personal order unless that person is a party to the proceedings in which the order is made.”

Section 10 is within Part 1 of the Act. Part 1 deals with personal rights. There are five i­ntroductory sections within Part 1 (ss 5 to 9) that provide a framework of principles the Court must consider when exercising its jurisdiction under Part 1. The first, and arguably the most important of these introductory sections, is s 5. This is the starting point for any application made under Part 1. It provides: “5. Presumption of competence For the purposes of this Part of this Act, every person shall be presumed, until the contrary is proved, to have the capacity— (a)

To understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; and

(b)

To communicate decisions in respect of those matters.”

Re Williams [PPPR]—Judgment 179 Also important is s 6. Section 6 is the gateway provision for jurisdiction under Part 1. The material parts of s 6 provide: “6. Jurisdiction of Court under this Part (1) Subject to subsection (2) of this section, a Court shall have jurisdiction under this Part of this Act in respect of any person who is ordinarily resident in New Zealand and who— (a) (b)

Lacks, wholly or partly, the capacity to understand the nature, and to f­oresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or Has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of such matters.

(2) Subject to section 12(3) of this Act, no Court shall have jurisdiction under this Part of this Act in respect of any person who has not attained the age of 20 years and who is not and never has been married. (3) The fact that the person in respect of whom the application is made for the exercise of the Court’s jurisdiction has made or is intending to make any decision that a p­ erson exercising ordinary prudence would not have made or would not make given the same circumstances is not in itself sufficient ground for the exercise of that jurisdiction by the Court.”

Sections 8 and 9 are also relevant. These sections provide: “8. Primary objectives of Court in exercise of jurisdiction under this Part The primary objectives of a Court on an application for the exercise of its jurisdiction under this Part of this Act shall be as follows: (a) (b)

To make the least restrictive intervention possible in the life of the person in respect of whom the application is made, having regard to the degree of that person’s incapacity: To enable or encourage that person to exercise and develop such capacity as he or she has to the greatest extent possible.

9. Course to be followed by Court (1) In considering an application for the exercise of its jurisdiction under this Part of this Act, a Court shall determine whether or not the person in respect of whom the application is made is a person in relation to whom it has jurisdiction under this Part in accordance with section 6 of this Act. (2) If the Court is satisfied that the person in respect of whom the application is made is a person in relation to whom it has jurisdiction under this Part of this Act in accordance with section 6 of this Act, the Court shall determine whether or not it should make an order under section 10 or section 11 or section 12 of this Act, and (if so) what kind of order or orders, having regard to the primary objectives specified in section 8 of this Act.”

Together, these introductory sections reflect the fundamentally rights-based and autonomy-focussed nature of the Act’s jurisdiction. The sections set out a two-step process for an application under Part 1 of the Act: (a) First, the Court must determine if there is jurisdiction. In order to do this, the Court must bear in mind the presumption of competence set out in s 5 and then decide whether the evidence shows that the subject person lacks, wholly or

180  Holly Hedley partly, the capacity to make (or communicate) their own decisions. The evidential onus is of course on the applicant. If the evidence does not establish that the person lacks capacity then there is no jurisdiction to make personal orders. (b) Second, if there is jurisdiction, the Court must then consider the second ­question; whether it “should” grant the orders sought. When making this decision, the Court must be guided by the two fundamental principles set out within s 8(1)(a) and (b); those are, to strive to impose the least restrictive intervention that is possible in all the circumstances and to ensure the subject person is encouraged to exercise and develop their own capacity to the extent possible. At this point I also note that although the principle of best interests is not expressly s­pecified in s 8, I agree with the approach taken by Judge Inglis in Re R M S [PPPR] (1993) 10 FRNZ 387 at p 392 and in Re H [1993] NZFLR 225 at pp 223–224, and note that when the Court is considering the overall question of whether orders “should” be granted, the Court should also have regard, as an overall and paramount consideration, to the best interests of the subject person. The wider legal framework—the New Zealand Bill of Rights Act and the Mental Health ­(Compulsory Assessment and Treatment) Act In addition to the Protection of Personal and Property Rights Act, other legislation is also relevant. I have already mentioned a person’s right to refuse medical treatment as set out in s 11 of the New Zealand Bill of Rights Act. Counsel did not make detailed submissions about the relevance of s 11 in this case, and I do not propose to analyse the relationship between this right and the powers to make orders under the Protection of Personal and Property Rights Act. I simply pause to emphasise that the very existence of s 11 of the New Zealand Bill of Rights Act reinforces the high value that our legal system places upon a person’s right to make their own decisions about medical treatment. I am thus reminded that I should approach any application for orders that may intrude upon this fundamental right with due care and attention. Also relevant in this case is the Mental Health (Compulsory Assessment and Treatment) Act. As mentioned, Ms Williams is subject to an in-patient compulsory treatment order under that Act. This means that at the moment her illness is such that she falls within the definition of “mentally disordered” as set out in that Act and also that treatment for her mental disorder in an in-patient facility (in this case the Mason Clinic) has been deemed necessary. However, while a person who is subject to an in-patient order falls within the ­definition of “mentally disordered” under the Mental Health (Compulsory Assessment and ­Treatment) Act, this does not necessarily mean they lack capacity for the purposes of the Protection of Personal and Property Rights Act. It is perfectly possible, by way of example, for a person to suffer from severe depression sufficient to require compulsory treatment but for that same person to be capable of understanding and communicating their own decisions about other aspects of their life and health, unrelated to their depression. As the Court said in Re S [1992] 1 NZLR 363: “being mentally disordered and competent are not mutually exclusive” and there is “a real danger in making assumptions as to the lack of competence of mentally ill people” (at pp 374 and 372). Ms Williams is therefore entitled to the benefit of the presumption of competence under s 5 of the Protection of Personal and Property Rights Act, regardless of her status under the Mental Health (Compulsory Assessment and Treatment) Act. With this legal framework in mind, it is now time to turn to Ms Williams’ case.

Re Williams [PPPR]—Judgment 181 Ms Williams’ case The Auckland Area Health Board seeks a wide range of orders under s 10(1)(f) of the Protection of Personal and Property Rights Act. To be precise, the orders sought are: (a) That Ms Williams’ labour shall be induced; (b) That if delivery of her baby proceeds by vaginal birth, a sedative or sedatives or epidural may be administered to Ms Williams; and/or (c) That the delivery of her baby be performed by caesarean section, together with an epidural injection; and/or (d) That the delivery of Ms Williams’ baby be performed by caesarean section under general anaesthetic; and/or (e) That the medical and nursing staff involved in the delivery of Ms Williams’ child are authorised to deliver the child in whatever manner in the opinion of the said medical and nursing staff is in the best interests of Ms Williams and her child; (f) That the said medical and nursing staff may administer whatever drugs, medication and anaesthetics are in the opinion of the said medical and nursing staff necessary to ensure the safe delivery of Ms Williams’ child; (g) That the medical practitioners and nursing staff provide and undertake such ­procedures and administer such medication as are necessary for the wellbeing of Ms Williams during the post-parting period while Ms Williams is in North Shore Hospital following the birth of the baby; and (h) That any medical or surgical procedure necessary to save the life of Ms Williams and/or her baby be undertaken. These orders are extensive. Among other things, the orders anticipate the clinicians inducing Ms Williams’ labour, administering sedatives and, if necessary, undertaking surgery, by way of a caesarean section operation. These are not minor matters. They are serious and intrusive procedures. With that in mind, and applying the two-step process I have set out above, the first stage of my inquiry is to address the question of jurisdiction. To do that, I must start from the presumption of competence, and then determine whether there is sufficient evidence to rebut that presumption. Does the evidence show that Ms Williams lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions about medical treatment for her labour and delivery? I have received reports and heard evidence from three psychiatrists tendered on behalf of Auckland Area Health Board: Drs Chaplow, Plunket and Fernandez. The views of all three psychiatrists are broadly consistent and can be summarised by the following extract from Dr Fernandez’ affidavit: “At present [Ms Williams’] mental state is unstable. She remains chronically deluded and psychotic. She lacks the capacity to fully comprehend or understand adequately the nature of or the consequences of decision in respect of matters relating to her pregnancy, delivery, personal care and welfare. Given her current unstable mental state, it is not ­possible to discuss the various options for the delivery of her child with her and [to] obtain her c­ onsent in advance to medical procedures.”

Dr Fernandez also explained that she anticipated “a further deterioration of her [Ms Williams’] mental state following a reduction of her current psychotropic medication leading to her being incapable of giving consent should complications arise shortly before and during her delivery” and she emphasised her concern that it is a “complete unknown” how Ms Williams will react when her labour commences.

182  Holly Hedley I have also heard evidence from Dr Benner who is an obstetrician. Dr Benner has attempted to discuss procedures with Ms Williams and says he can’t say with any certainty how much or how little Ms Williams understands. However, he also says that he is of the clear view that Ms Williams cannot understand or foresee the consequences of any ­decisions she may make either at present or during the delivery. This consistent evidence from all four of Ms Williams’ clinicians appears to be both convincing and powerful. The medical evidence quite naturally leads me to the conclusion that, despite the presumption of competence, Ms Williams does indeed lack sufficient capacity to make these important decisions for herself. However, despite this medical evidence, there are several features of this case that mean I am reluctant to simply accept jurisdiction and make the orders sought. The first feature is information that I have received from Mr Rogers, counsel appointed for Ms Williams. Mr Rogers has met with Ms Williams and he reports that Ms Williams wants: (a) Natural childbirth. (b) If that is not possible, vaginal birth with an epidural anaesthetic. (c) She does not want a caesarean birth, but if that has to be, then with an e­ pidural anaesthetic. (d) She does not want a general anaesthetic; and (e) She does not want instruments and wants as little interference as possible. The fact that Mr Rogers was able to meet with Ms Williams and articulate such a clear statement about what Ms Williams wants is quite contradictory to the comments that both Dr Benner and Dr Fernandez made about being unable to discuss the various options with Ms Williams. Mr Rogers’ report clearly demonstrates that Ms Williams was able to communicate and express her own wishes to him about what she would like to happen during her labour and delivery. The second feature is the new information I received from Mr Rogers today, that Ms Williams has told him more recently that she is willing to consent to the precise orders that are sought. Again, this suggests that Ms Williams is able to engage in a discussion about her wishes and, in fact, to engage in a discussion about the orders that are sought in the present case. At this point therefore, I have two quite different perspectives on Ms Williams’ ­capacity. On the one hand, I have medical evidence from four experts who have observed Ms ­Williams over time and who are all of the view that she lacks capacity. Such medical evidence should not be discounted lightly, and I hasten to add that I have no doubt the clinicians’ views and concerns are genuine. On the other hand, I have information from Mr Rogers that shows that Ms Williams was able to discuss and give her views with some insight. Mr Rogers is not a medical expert and neither am I. However, the fact Ms Williams has been able to discuss and communicate her views to her appointed counsel suggests to me that she may well have a greater degree of capacity than her clinicians initially thought. This is a red flag that I cannot and will not ignore. To ensure that Ms Williams has the full protection to which she is entitled under this Act’s regime, I therefore believe there is an urgent need to further explore Ms Williams’ capacity and to hear more about her views and wishes. There are also a number of procedural irregularities which trouble me in this case. Built into the Protection of Personal and Property Rights Act are a number of procedural requirements that are intended to act as safeguards to ensure due process and to allow

Re Williams [PPPR]—Judgment 183 the subject person to have the full benefit of participating in a process that is, after all, all about them. In particular, s 74 sets out an expectation that the subject person will be present throughout the hearing, unless an exception applies. Specifically, s 74 provides: “74. Attendance of person in respect of whom application is made (1) The person in respect of whom an application for the exercise of the Court’s ­jurisdiction under this Act is made shall be present throughout the hearing unless excused or excluded by the Court under subsection (2) or subsection (3) of this section. (2) The Court may excuse the person if it is satisfied that the person wholly lacks the capacity to understand the nature and purpose of the proceedings, or that attendance or continued attendance is likely to cause that person serious mental, emotional, or physical harm. (3) The Court may exclude the person if it is satisfied that the person is causing such a disturbance that it is not practicable to continue with the hearing in the presence of that person. (4) The Court may exercise its discretion to excuse or exclude the person at any stage of the hearing. (5) The person shall be present while the Court makes any order upon the application unless—

(a) The person has been excused or excluded under subsection (2) or subsection (3) of this (b)

section; or There are exceptional circumstances justifying the Court making an order in the absence of the person.”

Ms Williams was not present at the hearing. She has therefore been disadvantaged as she was not able to participate in a hearing that is about her body and her baby, nor was she able to give direct evidence to me about her own views and wishes (something which may well have been of particular value, given Mr Rogers’ reports). It may be that one of the exceptions in s 74(2) or (3) could have applied in Ms Williams’ case, but I did not receive an application or submissions on this point. I am also uneasy about the lack of information I have about Ms Williams’ wider ­family or other support persons. Ms Williams is a young woman in the late stages of ­pregnancy, suffering from mental illness and being held in a secure mental health facility. She is undoubtedly vulnerable. I therefore believe it is incumbent on the Court and on all those involved in this case to make sure that Ms Williams has as much family and other support as she wants to have during this process. I accept that there is not an express duty in the Act to involve a person’s family or other support persons in proceedings like this. However, there is a requirement under s 63 to serve a range of interested parties with the application. These parties include a person’s parents, the people with whom they live, or anyone else ordered by the Court. At the moment, Ms Williams is of course residing at the Mason Clinic, but that is not a permanent arrangement. I am left wondering whether there are family members or friends who should at least be considered for service and involvement in these proceedings in accordance with s 63. Given all of this, I do not have the information I need to make a final determination about Ms Williams’ capacity. However, rather than dismiss this application outright, I have decided to adjourn the matter and to exercise my jurisdiction under s 76 of the Act to call for further evidence. I am going to order two reports, one from an independent psychiatrist and one from a social worker. I will ask the psychiatrist to meet with Ms Williams and provide the Court with an opinion on Ms Williams’ capacity to make her own decisions about the t­reatment required for her labour and delivery. I also want the psychiatrist to discuss Ms Williams’

184  Holly Hedley views with her, and to address whether Ms Williams should have an opportunity to attend at any future hearings or give evidence herself, bearing in mind the factors set out in ss 74(2) and (3). The social worker’s role will be to explore Ms Williams’ wider family and other support persons. I want to know if there are people available to support Ms Williams now and also in the coming weeks, including after the baby is born. If so, I want to know whether Ms Williams would like to have any of those people involved in these proceedings or during her labour and delivery. The social worker can also explore whether there is anyone who might be appropriate to be appointed as Ms Williams’ welfare guardian, should it be determined that she lacks capacity and that some form of orders is necessary. I note that if, on the other hand, I determine that Ms Williams has capacity, she could also choose to appoint a person of her choice as her Enduring Power of Attorney for Personal Care and Welfare. The appointed attorney could then support Ms Williams throughout these next few months, and, if Ms Williams’ mental health does deteriorate to a point where she loses capacity, the attorney could step in and make lawful decisions on her behalf. I leave this as a matter for Ms Williams and her counsel to consider further once the additional reports are filed. Finally, as a concluding point, I want to record my doubts about the necessity for the appointment of separate counsel to represent the unborn child in this case. The subject person is Ms Williams. It is her rights and autonomy that may be limited by the orders, and thus the Court’s primary focus must remain on her. If she has capacity, then Ms Williams is entitled to make decisions both about what is best for her and for her child. If not, or if there is a question about what is in the best interests of the child, then I believe that a Court will usually be able to consider and weigh the interests of an unborn child as a relevant factor without the need for an additional, separate counsel. I am sorry to have had to chart a course that prolongs these proceedings and that requires Ms Williams to have further assessment. However, as I said at the outset, applications for orders such as those that are sought in the present case demand close, careful and compassionate scrutiny. To do anything less would be inconsistent with Ms Williams’ rights and with the protective nature of this jurisdiction. I will ensure that the two reports are progressed with urgency. The Registrar will contact counsel with further directions as soon as possible. Application adjourned.

Family Relationships

186 

11 Commentary on Quilter v Attorney-General Same-Sex Marriage and the Marriage Act WENDY ALDRED

The Court of Appeal Judgment Three lesbian couples had been denied marriage licences by the Registrar of Births, Deaths and Marriages on the basis that the Marriage Act 1955 (NZ) did not provide for same sex marriages. They applied to the High Court for declarations that the Registrar’s actions were unlawful in that they amounted to discrimination against them on the grounds of their gender and sexual orientation under s 19 of the New Zealand Bill of Rights Act 1990 (NZ). Section 19 provides that everyone has the right to freedom from discrimination on the grounds covered by the Human Rights Act 1993 (NZ). Section 21 of the Human Rights Act sets out the prohibited grounds of discrimination and includes ‘sex, which includes pregnancy and childbirth’1 and ‘sexual orientation, which means a heterosexual, homosexual, lesbian, or bisexual orientation’.2 Therefore, the appellants argued, the Marriage Act should be interpreted consistently with the s 19 right to freedom from discrimination as required by s 6 of the Bill of Rights Act, which provides that wherever an enactment can be interpreted consistently with the Bill of Rights Act, that meaning shall be preferred. There was no definition of ‘marriage’ in the Marriage Act as it applied at the relevant time, but it was accepted that at the time of enactment the understanding of the legislature was that a marriage was between a man and a woman, consistently with the common law understanding of that term. The applications were denied by the High Court and the appeal was dismissed by a full Court of the Court of Appeal, in the first decision after the enactment of the Bill of Rights Act to consider the application of s 19. This timing perhaps explains in part the varied and in some cases unsatisfactory approaches to discrimination between the judgments in the

1  2 

HRA 1993, s 21(1)(a). HRA 1993, s 21(1)(m).

188  Wendy Aldred Court of Appeal. The judgments also differ considerably in their treatment of the interpretive provisions of the Bill of Rights Act.3 The judgments each considered two issues: whether the appellants had been discriminated against under s 19, and whether (if the answer to the first question was yes) the Marriage Act could be interpreted consistently with s 19 so as to permit same sex marriage. Keith J found that s 19 ‘does not reach the matter of same-sex marriages’,4 and his reasons for that conclusion centred on his view that the ‘largely declaratory nature’ of the Bill of Rights Act tended to indicate that widespread changes with significant consequences (such as the extension of the right to marry to same sex couples) would not be effected by its general provisions. His Honour went on to discuss the international jurisprudence regarding same sex marriage.5 He seems to have been attracted (without explaining precisely how this affected his analysis) to the notion, adopted in the US, that there is a hierarchy of grounds of discrimination, where some (such as race) are more ‘suspect’ than others (such as sexual orientation).6 Gault J (with Richardson P concurring) took a narrow approach to the concept of discrimination, which perhaps reflected to some extent their primary finding (adopting the reasoning of Tipping J) that ‘the Marriage Act is clear and to give it such different meaning [as contended for by the appellants] would not be to undertake interpretation but to assume the role of lawmaker which is for Parliament’.7 Having stated this view, his Honour said that the appellants were not discriminated against because ‘there would have been no different reaction [by the Registrar] had the appellants been male or if they had been heterosexual and simply seeking a marriage relationship to take advantage of perceived civil benefits’.8 This statement perfectly illustrates the constricted approach to discrimination adopted in this judgment: that discrimination is confined to different direct treatment of the individual or group that is the subject of the protection against discrimination. That approach is at odds with s 65 of the Human Rights Act, which deemed unlawful the application of a measure that was not on its face discriminatory on one of the prohibited grounds, but the effects of which were to treat a person or group of persons differently.9 Both Tipping J and Thomas J dissented from the majority on the issue of discrimination, finding (in separate judgments) that a prohibition on marriage between persons of the same sex did engage the appellants’ right to freedom from discrimination under s 19 of the Bill of Rights. Both judgments applied the broader notion of ‘indirect’ or ‘impacts-based’ discrimination, holding that the appellants had been prima facie discriminated against by virtue of the impact of the prohibition, notwithstanding that (as Gault J would have it) the prohibition would have applied to a male couple seeking a marriage licence.

3 

NZBORA 1990, ss 4–6. Quilter v Attorney General [1997] NZCA 207, [1998] 1 NZLR 523, 556. 5  A Butler observes in ‘Same Sex Marriage and Discrimination’ [1998] New Zealand Law Journal 229, 230 that ‘in none of the documents cited is sexual orientation an explicitly prohibited ground of discrimination’ undermining the relevance of the cases in which the overseas courts had refused to strike down legislation on the basis of discrimination on that ground’. 6  Quilter (n 4) 566 per Keith J. 7  ibid 526, per Gault J. 8  ibid 527, per Gault J. 9  An example of indirect discrimination would be an employer deciding to engage only employees over a certain height: while physical stature is not amongst the prohibited grounds of discrimination in the Human Rights Act 1993, the effects of such a rule might be to preclude the employment of women, whose average height is lower than the average height of a male. Thus, the rule would amount to indirect discrimination on the basis of sex. 4 

Quilter v Attorney-General—Commentary 189 Thomas J went on to consider the rationale for this discrimination and concluded that the only conceivable justification was that heterosexual relationships had as their foundation the objective of procreation, whereas same sex relationships could not. His Honour was critical of the possibility of procreation as a basis for differential treatment of same sex couples in relation to marriage, finding after substantial discussion of the point that:10 Any attempt to find a “reasonable and objective” basis for the differentiation based on the function of procreation and so avoid the charge of discrimination surely must fail, simply because it is unreal and unfair to define marriage in such restricted terms.

However, both Tipping and Thomas JJ agreed with the majority that the Marriage Act was not capable of being read consistently with the right in s 19. Tipping J’s findings in this regard (adopted by Thomas J) were based upon the common law understanding of the concept of marriage as it prevailed at the time of enactment of the Marriage Act and other statutory indications, including later enactments which tended to refer to marriage as involving a woman and a man. All five judges therefore agreed that the terms of the Marriage Act were clear in providing only for heterosexual marriages and that to read the Marriage Act in any other way would be going beyond the Courts’ role. The judgment of Tipping J (adopted by all of the other members of the Court in this respect) traversed the relevant provisions of the Marriage Act that were said to preclude a non-discriminatory reading. In short, these were the provisions in s 15 prescribing the prohibited degrees of relationship (referring to the Second Schedule, which lists forbidden marriages in two parts, being ‘A woman may not marry’ and ‘A man may not marry’) and the requirement that a person giving notice of an intended marriage must state that the marriage is not prohibited by s 15 and that there is no other lawful impediment to it (suggesting that there are lawful impediments that may be found outside the express prohibitions in s 15).11 These particular statutory indications that the participants in a marriage must be a man and a woman seem somewhat underwhelming, in view of the unanimous acceptance of their clarity and decisiveness of the central issue in the appeal. Further, in relying substantially on the understanding of the term ‘marriage’ at the time of enactment of the Marriage Act, the Court of Appeal appears not to have given adequate consideration to application of the ‘ambulatory’ approach to statutory interpretation commonly favoured by the courts.12 Well before the Quilter plaintiffs brought their proceeding, Lord Diplock had said, in a different context:13 Unless the Sale of Goods Act 1893 is to be allowed to fossilise the law and to restrict the freedom of choice of parties to contracts for the sale of goods to make arrangements which take account of advances in technology and changes in the way in which business is carried on today, the provisions set out in the various sections and subsections of the code ought not to be construed so narrowly.

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Quilter (n 4) 547, per Thomas J. Quilter (n 4) 577–579. JF Burrows and RI Carter, Statute Law in New Zealand, 5th edn (Wellington, Lexis Nexis, 2015) 413, 422. The authors note that ‘[a]n ambulatory interpretation may be especially apt for statutes whose purpose is to receive or recognise the common law. If treated as “fixed-time” statutes, they would, on enactment, “freeze” the common law that they “recognise” or “receive” from another jurisdiction’. 13  Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441 (HL) 501. 11 

12  See

190  Wendy Aldred

Developments Since Quilter Since Quilter was decided in late 1997, there have been significant developments in Bill of Rights Act jurisprudence, in relation to both the proper application of the interpretive provisions of ss 4–6 and the right to freedom from discrimination protected in s 19. By the time that the (now) leading case on discrimination in New Zealand, Ministry of Health v Atkinson & Ors, was decided, it was trite law that the broader concept of that term as encompassing both direct and indirect forms of discrimination represents the proper approach to the right guaranteed by s 19.14 In terms of the legislative landscape, things have moved on gradually, but significantly, consigning Quilter to the realm of academic significance. First, the Property (Relationships) Amendment Act 2001 (NZ) amended the Matrimonial Property Act 1976 (NZ) to make provision for de facto relationships, providing that for the purposes of the Matrimonial Property Act ‘a de facto relationship is a relationship between 2 persons (whether a man and a woman, or a man and a man, or a woman and a woman)’. A proceeding brought before the United Nations Human Rights Committee by a New Zealander who argued that a right to marriage equality flowed from the International ­Covenant on Civil and Political Rights did not succeed.15 However, domestic reform continued with the enactment of the Civil Union Act 2004 (NZ), which established the institution of civil unions for both same sex and opposite sex couples. Finally, the Marriage Act was amended in 2013 expressly to extend the right to marry to same sex couples, providing that ‘marriage’ means ‘the union of 2 people, regardless of their sex, sexual orientation, or gender identity’.16 Since that amendment, same sex couples have also been able to jointly adopt children, and in the recent Family Court decision in Re Pierney and Hsieh, the judge applied a rights-consistent interpretation of the word ‘spouse’ in the Adoption Act 1955 (NZ) to include same-sex de facto couples for the purposes of joint adoption applications.17 Elsewhere, constitutional courts have held that the exclusion of same-sex marriage violated constitutional rights and more than 20 states now have legislative recognition of same-sex marriage.18

14  Ministry of Health v Atkinson [2002] NZCA 184, [2003] 3 NZLR 456 [55]: ‘It is agreed that the first step in the analysis under s 19 is to ask whether there is differential treatment or effects as between persons or groups in analogous or comparable situations on the basis of a prohibited ground of discrimination’ (per curiam). 15  Joslin v New Zealand (2002) Communication No 902/1999, UN Doc A/57/40, 214. 16 In 2012, the Marriage (Definition of Marriage) Amendment Bill, allowing same-sex couples to marry was introduced to Parliament. Its origin was a private member’s bill introduced by Louisa Wall, a New Zealand Labour Party MP. The resulting Marriage (Definition of Marriage) Amendment Act 2013 (NZ) was passed on 17 April 2013 and came into force on 19 August 2013. 17  Re Pierney and Hsieh [2015] NZFC 9404, [2016] NZFLR 53, per Judge McHardy. 18  M Langford, ‘Revisiting Joslin v New Zealand: Same-Sex Marriage in Polarised Times’ in E Brems and E Desmet (eds), Integrated Human Rights in Practice: Rewriting Human Rights Decisions (London, Edward Elgar, 2017).

Quilter v Attorney-General—Commentary 191

The Feminist Judgment Abaffy J’s additional minority feminist judgment begins by noting that there were strong competing opinions on the applications before her from various sections of society. She recognises that there are people throughout society who question the utility of the institution of marriage, but goes on, appropriately, to consider the appellants’ case on the proper basis: namely, that the right to marry and to be married is important to them. That not everyone sees value in the institution of marriage is an interesting (and somewhat refreshing) observation not made by other members of the Court of Appeal. In her work Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage,19 Nicola Barker argues strongly that because same-sex marriage is part of the traditional ‘marriage model’, certain types of relationship that do not fall within that model are automatically classified as not authentic. Therefore, Barker argues for a new model ‘that rejects the marriage model and takes seriously the critiques of marriage from both feminism and queer theory’.20 Abaffy J goes on to consider whether the Crown’s interpretation of the relevant provisions of the Marriage Act constitutes discrimination on the basis of sexual orientation. She squarely confronts the Crown’s argument to the effect that the appellants cannot be held to have been discriminated against because they have received the same treatment that any other person would receive (that is, being prevented from marrying someone of the same sex), pointing out that the Crown’s argument proceeds on the basis of an incorrect comparator group. The only correct comparator group, as Abaffy J recognises, is that of a person wanting to marry the person of her choice, noting with compelling clarity that ‘[a] heterosexual woman can marry the person of her choice, as informed by her sexual orientation. A homosexual woman cannot marry the person of her choice, as informed by her sexual orientation’.21 The feminist judge also finds that the appellants have been directly discriminated against on the basis of sex, noting that had the appellants been men wishing to marry women, their applications would have been granted. Abaffy J’s judgment takes a broader approach to both the scope of the right to freedom from discrimination and to the application of the interpretative provisions of the Bill of Rights Act than the other judges were prepared to take (excepting perhaps Thomas J in relation to the meaning of discrimination in s 19). The Marriage Act is analysed in the judgment, and held to be capable of bearing a meaning that is consistent with the right to freedom from discrimination on the basis of sexual orientation. In this regard, Abaffy J is prepared to take a more fluid approach to the use in that legislation of the terms ‘marriage’, ‘husband’ and ‘wife’; noting that the traditional conception of a husband and wife as referring to a married man and woman (accepted by

19 N Barker, Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage (Basingstoke, Palgrave­ Macmillan, 2013). 20  ibid 2. See also discussion of feminist views on marriage in N Seuffert, ‘Sexual Citizenship and the Civil Union Act 2004’ (2006) 37 Victoria University of Wellington Law Review 281, 285. 21  Abaffy J, this collection, 197.

192  Wendy Aldred all of the judges in the original Court of Appeal judgment as the only possible meaning) represents a religious and heteronormative approach to those terms that is not necessarily accepted as their only meanings in modern, secular, and/or gay communities. On that basis, the feminist judge finds that s 6 of the Bill of Rights Act requires the ­Marriage Act to be interpreted consistently with the s 19 right, that is, so as to permit same sex couples to marry. Although unnecessary in light of her interpretation of the Marriage Act, she goes on to consider whether the refusal to allow same sex couples the ability to marry is a reasonable limit that can be demonstrably justified in a free and democratic society under s 5 of the Bill of Rights Act. Unsurprisingly, Abaffy J’s conclusion is that the prohibition is not such a justified limitation: unsurprisingly because none of the original Court of Appeal judgments identify any compelling rationale for the restriction of marriage rights to heterosexual society. Indeed, the only judgment that considered what the rationale for that restriction might be was that of Thomas J, who (as noted above) concluded that it must be the objective of procreation but was not prepared to classify that as a rationale that was either reasonable or objective. The judgment may be characterised as feminist in the broad sense of challenging preconceived or traditional notions about marriage, including its desirability as an institution,22 and, in particular, the idea that for a marriage to be valid, one of the partners to it must be male. Her Honour’s more flexible approach to the language of the Marriage Act than that taken by the (male) majority might well be reflective of her own identification as feminist and lesbian judge. Of course, the judgment would apply equally to permit marriage between gay men, but that does not, in the writer’s view, negate the essentially feminist nature of its reasoning. Finally, the feminist judge takes the opportunity to comment critically on the potential for real social injustice to result from the application of her judgment. If same sex marriage were permitted by the Marriage Act, then same sex couples in receipt of social security benefits could face a reduction in entitlements, due to their ‘couple’ status. Abaffy J records her view that the payment of lesser benefits to those in relationships (including married and de facto couples) amounts to discrimination on the basis of family status, and appeals to the legislature to review this policy, for which there is little justification.

22 Barker, Not

the Marrying Kind (n 19).

Quilter v Attorney-General

Court of Appeal  Wellington 3 September; 17 December 1997 Richardson P, Gault, Thomas, Abaffy, Keith, and Tipping JJ

ABAFFY J. Introduction The question for determination in this case is whether the appellants: Ms Quilter, Ms Pearl, Ms Joslin, Ms Rowan, Ms Anderson, Ms Court; and, by extension, all homosexuals (known variously and across time by different names, both positive and negative) have the right to marry in New Zealand. The appellants each want to marry. They have applied to the New Zealand Department of Internal Affairs’ Births, Deaths and Marriages Registrar for marriage licences. The Registrar has denied marriage licences because the appellants’ listed choices of spouses were persons of the same-sex. The specific questions to answer are whether the refusal to grant marriage licences to the appellants is discrimination on a prohibited ground by virtue of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) and the Human Rights Act 1993 (Human Rights Act). If so, whether the Marriage Act 1955 (the Marriage Act) can be read consistently with the right to be free from discrimination so as to allow same-sex marriage. The appellants say that they are being discriminated against on the basis of sex and sexual orientation, which is prohibited under the Bill of Rights Act and the Human Rights Act. They want to marry a person of the same-sex and have that marriage registered and recognised by the state. The appellants claim that the Marriage Act can and should be given a meaning consistent with the Bill of Rights Act to prevent discrimination on the basis of sex and sexual orientation and to allow same-sex marriage. They further claim that the Registrar’s denial of marriage licences, and thereby the ability to marry and have that marriage registered and recognised by the state, cannot be justified in New Zealand’s free and democratic society. I recognise that there are a number of important legal issues and social consequences involved in this case and a range of competing social views on the appellants’ claim. There are those with strongly held religious beliefs who consider the marriage of couples of the same-sex an affront to their religious values. There are those who consider the question of same-sex marriage to be one which is squarely a matter for Parliament and its democratic processes. There are those in the feminist movement who consider marriage an oppressive social institution that facilitates male control over women economically and sexually. There are those in the gay community who question the utility and value of state recognition of same-sex marriage to themselves and their communities. They consider m ­ arriage part of a heterosexual nuclear family framework that often fails to protect universal individual rights and fails to recognise the complexity and diversity of human ­relationships.

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And there are those who, like the appellants, consider marriage to be an institution to which same-sex couples should have equal access. In the first instance, it is necessary for me to examine the history and meaning of marriage, the Marriage Act, the Bill of Rights Act and the Human Rights Act. The history of state marriage in England The Clandestine Marriage Act 1753 (known as Lord Hardwicke’s Act) marked the beginning of state involvement in marriage in England. Prior to state involvement in marriage, the requirements for a valid marriage were governed by the canon law of the Church of England. The Clandestine Marriage Act 1753 required couples wanting to marry to issue a formal marriage announcement (referred to as calling of banns) or obtain a licence. The intention of the Act was to put a stop to clandestine marriages which had become easier as travel became more accessible in England. The Clandestine Marriage Act 1753 applied to Christians marrying in the Church of ­England. The Act did not apply to those outside the Church of England including Roman ­Catholics, Jews and Quakers. The Royal Family was also exempt from the Act. Marriages of non-conformists or “dissenters” (those who did not accept the canons of the Church of England) were not recognised, except in the case of Quakers. There is little evidence about whether an intention of the Act was to prevent clandestine marriages between same-sex ­couples. What can be said is that the Church of England at the time would not have sanctioned such a marriage. The Clandestine Marriage Act 1753 was repealed and replaced by the Marriage Act 1836. That Act introduced civil marriages, which recognised and provided for the registration of the marriages of dissenters. Viscount Melbourne, when introducing the second reading of both the Marriage Bill and the Births Bill (requiring registration of all births), said that it was “to protect rights which in all the transactions of human life and in all the affairs of man were of paramount importance, that these Bills were now presented to their Lordships” (HL Deb 11 July 1836, vol xxxv, col 80). Lord John Russell stated that couples would now be able to have their marriages celebrated “in conformity with their conscientious principles” (HC Deb 11 August 1836, vol xxxv, col 1127). Put simply, the Marriage Act 1836 meant that non-conformists could marry in their own places of worship or at a registrar’s office with a civil official present who documented their marriages. The current legislation in England is the Marriage Act 1949. This Act makes provision for recognition of overseas marriages and sets out express restrictions on marriage including those relating to age, being already married and marriage within certain degrees of relationship. The 1949 Act leaves much of the Marriage Act of 1836 intact including the wording of the marriage vows: “I call upon these persons here present to witness that I, AB, do take thee, CD, to be my lawful wedded wife [or husband]”.

The history of state marriage in the Colony of New Zealand Marriage in pre-colonial New Zealand by Maori did not include a specific exchange of vows before an official celebrant, although a feast and the giving of taonga was common. Family consent was required. Sometimes marriages were arranged by family and sometimes people would find their own partners and then seek family consent for the union (A Mikaere, “Maori Women: Caught in the Contradictions of a Colonised Reality” (1994) 45 2 Waikato Law Review 125–149). The state regulation of marriage in the English Colony of New Zealand began with the Marriage Ordinance of 1842. The Ordinance declared marriages solemnised by a minister of any church or denomination valid. The reason for this was to clarify and confirm the status of marriages in the absence of episcopally-ordained ministers, who were not always 50 available. The Marriage Ordinance 1842 exempted marriages between Maori. 40

Quilter v Attorney-General—Judgment 195 The Marriage Ordinance 1842 was replaced by the Marriage Act 1854. The ­Marriage Act 1854 required non-Maori residents to give notice of their intention to marry and obtain a marriage licence before any wedding could take place. The Act divided the Colony into districts and provided for the appointment of “Registrars of Marriages”. Registrars could issue certificates except where there was a lawful impediment to marriage. The only imped- 5 iment expressly referred to in the Act was age. Marriage by a person under 21 required parental consent. The Marriage Act 1854 also provided for a national marriage register and the f­ orfeiture of property and estates in situations where a marriage was found to be null and void. The Act retained the same vows as the Marriage Act 1949. The Schedules to the Act set out 10 the relevant forms for the marriage certificate, notice of marriage and national registration. Each of the examples used refers to heterosexual unions. For example, a form notice of marriage between a “James Smith / Batchelor” and “Mary Green / Spinster”. A series of Acts then followed, clarifying and including certain additional matters, ­culminating in the Marriage Act. 15 Marriage Act 1955 The Marriage Act continues to require notice of marriage and the issuing of a ­marriage licence (Part 4), the signing of a marriage certificate, solemnisation of the marriage (Part 5) and state registration of the marriage. The Act also sets out certain express ­restrictions 20 on marriage including those relating to age, being already married, and ­marriage within ­certain degrees of relationship (Part 3 and Schedule 2). Sections 23 and 24 of the Act provide: 23. Notice of marriage (1) Where 2 persons intend to marry in New Zealand, one of them shall give notice in the prescribed form to a Registrar.

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(2) The person giving notice shall appear personally before the Registrar and shall make a statutory declaration in the prescribed form that the several particulars set forth in the notice are true, that he believes that the marriage is not prohibited by section 15 30 of this Act [concerning marriage within prohibited degrees of relationship], and that there is no other lawful impediment to the intended marriage. 24. Issue of marriage licence and information return (1) Subject to the provisions of this Act, if a marriage is to be solemnised by a 35 marriage celebrant or under section 32 of this Act, and notice has been given to a Registrar in accordance with section 23 of this Act, the Registrar shall, not earlier than the third day after the day the notice was given, issue to the person who gave the notice— (a) A marriage licence in the prescribed form, authorising the marriage of the 40 persons named in it at the place, or either of 2 places (being a place or places situated in New Zealand), specified in it; and (b) Two copies of a form provided by the Registrar-General for the purpose of returning information relating to marriages solemnised by marriage ­celebrants or under section 32 of this Act. 45 (2) Notwithstanding subsection (1) of this section, if satisfied that— (a) A proposed marriage is not prohibited by this Act; and (b) The requirements of this Act have been complied with; and (c) The parties to the proposed marriage would otherwise be inconvenienced,—

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196  Clare Abaffy a Registrar may issue a marriage licence and marriage return forms before the third day after the day the notice concerned was given. (emphasis added) Section 31(3) of the Marriage Act sets out the marriage vows: 5

(3) During the solemnisation of every such marriage each party to it shall say to the other: … I A.B., take you C.D., to be my legal wife (or husband), … or words to a similar effect.

10 New Zealand Bill of Rights Act 1990 The Bill of Rights Act derived from a White Paper presented in the House of Representatives in 1985. The paper proposed a Bill of Rights which would be entrenched as supreme law. The proposed Bill was not accepted by Parliament at that time due to concerns about its effect including the entrenchment provisions. In July 1986 the Homosexual Law Reform Bill was passed after a long campaign by 15 gay rights activists and law reformers. The Homosexual Law Reform Bill decriminalised homosexual sexual acts between consenting adults. A second part of the Bill, proposing to outlaw ­discrimination on the grounds of sexual orientation, was not accepted by P ­ arliament at that time. Fresh from the public debates about the passage of the Homosexual Law Reform Act, 20 in October 1988 the Select Committee reported back on the draft Bill of Rights. The resulting Bill of Rights Act was enacted, albeit not as supreme or entrenched law, in September 1990. I consider the long title of the Bill of Rights Act, which did not change during the Bill’s passage, significant. The long titled states it is an Act: 25 (a) to affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and (b) to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights. (emphasis added) 30 Section 19 of the Bill of Rights Act, under the heading of “Non-Discrimination and ­Minority Rights” states: 19. Freedom from discrimination 35

(1) Everyone has the right to freedom from discrimination on the grounds of ­discrimination in the Human Rights Act 1993. (2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.

Human Rights Act 1993 The Human Rights Act repealed and replaced the Race Relations Act 1971 and the Human Rights Commission Act 1977. The Human Rights Act deals mainly with the right to be free from discrimination and sets out the role and functions of the Human Rights Commission. The Act adds new grounds of discrimination, significantly here; sexual orientation. 45 The inclusion of protection from discrimination on the basis of sexual orientation marked Parliament’s acceptance of the second part of the campaign relating to homosexual law reform referred to above. While there was an amount of controversy over the passing of the Homosexual Law Reform Bill, in comparison, the Human Rights Act passed with little controversy—showing a change in public attitudes since 1985. 50 40

Quilter v Attorney-General—Judgment 197 The Human Rights Act lists the prohibited grounds of discrimination at s 21 and includes, relevantly: “Sex, which includes pregnancy and childbirth”; and “Sexual orientation, which means a heterosexual, homosexual, lesbian, or bisexual orientation”. Whether the refusal to grant a marriage licence is discrimination on a prohibited ground 5 The Human Rights Act is intended to prevent unlawful discrimination. Discrimination is the unjust or prejudicial treatment of a person or group protected by the Act. The Crown argues that there is no discrimination against the appellants because they are in the same position as everybody else. No one can choose to marry a person of the same sex, who is underage, who is already married or who is within the prohibited 10 degrees of relationship. They have therefore not been subject to any unjust or prejudicial treatment. But this analysis misses the point. First, if the appellants were being treated the same as every other person, they would have the ability (as a man presently does) to marry a woman. Secondly, the Crown’s argument fails to identify and take account of the feature 15 which is said to be the prohibited ground complained about and the effect of this on the situation. Discrimination on the basis of sexual orientation The appropriate comparable group to whom the discrimination is directed here is not a woman wanting to marry a man within the prohibited degrees of relationship, nor a woman wanting to marry a man who is already married, nor a woman wanting to marry a man who is underage, as is contended by the Crown. To compare the appellants to other women who cannot marry, albeit for a different reason, would mean that discrimination would never be found, even when such discrimination is operative, so long as someone else can be found who is also excluded. The correct questions here are: can a homosexual person marry the person of their choice, as informed by their sexual orientation? And, if not, are they being denied the opportunity to marry, and thereby being treated prejudicially, on the basis of their sexual orientation? A heterosexual woman can marry the person of her choice, as informed by her sexual orientation. A homosexual woman cannot marry the person of her choice, as informed by her sexual orientation. I agree with counsel for the appellants that the appellants’ sexual orientation is the operating feature informing their choice of spouse (a person of the same-sex) and is the operating feature of the Registrar’s refusal to issue marriage licences. The appellants were therefore denied marriage licences because of their choice which was based on their sexual orientation. Whether it was the Registrar’s intention to discriminate on the basis of sexual orientation or simply to apply the same rules to everyone is not material.

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Discrimination on the basis of sex Given that the appropriate question here is whether a person can marry the person of 40 her choice, I find that the appellants’ sex is also an operating factor. If the appellants were men choosing to marry women, marriage licences would have been granted. The fact they were women was an operative factor in the Registrar’s refusal to grant marriage licences. I therefore conclude that the appellants were discriminated against on the basis of sex as well as sexual orientation. I agree with Thomas J, whose judgment I have had the benefit 45 of reading in draft form, that the appellants are being denied a civil right and are being effectively excluded from full membership in society. Interpretation of the Marriage Act 1955 The Acts Interpretation Act 1924 relevantly provides in s 5(d) and (j):

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… (d) The law shall be considered as always speaking, and whenever any matter or thing is expressed in the present tense the same shall be applied to the ­circumstances as they arise, so that effect may be given to each Act and every part thereof according to its spirit, true intent, and meaning: … (j)

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Every Act, and every provision or enactment thereof, shall be deemed remedial, whether its immediate purport is to direct the doing of anything Parliament deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning, and spirit.

The starting point when interpreting legislation is the natural and ordinary meaning of words read in their context and in light of the statutory purpose. Where the natural and ordinary meaning of an Act does not accord with the objects of the Act or the meaning of the words is ambiguous, the courts should seek to apply a meaning that is consistent with the objects of the Act and still enables the legislation to work effectively.

25 The effect of the New Zealand Bill of Rights Act 1990 It is axiomatic that the Bill of Rights Act is a piece of legislation subject to the g­ eneral principles used when interpreting legislation. Section 5(j) of the Acts Interpretation Act requires us to give it such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, mean30 ing, and spirit. The long title is key to the objects of the Act. The Bill of Rights Act is an Act to “promote” as well as to “affirm” and “protect” human rights in New Zealand. The Shorter Oxford English Dictionary (Oxford University Press, 1978) defines promote as to “Support or actively encourage”. Parliament has directed the courts to actively encourage human rights and fundamental freedoms in New Zealand including the right to be free 35 from ­discrimination, subject to such reasonable limits as can be justified in our free and democratic society. In Simpson v Attorney-General, Cooke P said, “The long title shows that, in affirming the rights and freedoms contained in the Bill of Rights, the Act requires development of the law when necessary. Such a measure is not to be approached as if it did no more than 40 preserve the status quo” (Simpson v Attorney-General [1994] 3 NZLR 667 at p 676, Cooke P, affirming his observation from Ministry of Transport v Noort [1992] 3 NZLR 260). Applying ss 4, 5 and 6 of the New Zealand Bill of Rights Act 1990 The correct approach to interpreting legislation in accordance with the Bill of Rights 45 Act is to look first at the relevant legislation taking into account the direction contained in s 6 of the Bill of Rights Act, that wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights Act, that meaning shall be preferred to any other meaning. The words of s 6 of the Bill of Rights Act are strong. Where a meaning consistent with 50 the rights and freedoms contained in the Bill of Rights Act can be given, such interpretation

Quilter v Attorney-General—Judgment 199 shall be preferred to any other meaning. This approach to the Bill of Rights Act is consistent with the objects of the Bill of Rights Act to “promote” as well as to “affirm” and “protect” human rights. When looking at the correct interpretation of legislation, the Court must consider s 5 of the Bill of Rights Act. That section states that the rights and freedoms contained in the Bill 5 of Rights Act may only be subject to such reasonable limits as prescribed by law as can be demonstrably justified in a free and democratic society. Put another way, the correct interpretation of a piece of legislation may be found to limit the rights and freedoms contained in the Bill of Rights Act. Where a limit is found and the limit is reasonable, prescribed by law and can be demonstrably justified in a free and democratic society, no inconsistency 10 with the Bill of Rights Act arises. On the other hand, where the correct interpretation gives rise to a meaning that is not consistent with the rights and freedoms contained in the Bill of Rights, is not reasonable, and cannot be demonstrably justified in a free and democratic society, that is where the role of the Court ends and it will be a matter for Parliament to effect change. 15 Finally, s 4 of the Bill of Rights Act should be considered to ensure that, in relation to legislation under consideration, the Court does not hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or decline to apply any provision of the enactment by reason only that the provision is inconsistent with any provision of the Bill of Rights Act. 20 The meaning of “married”, “husband” and “wife” The Marriage Act principally uses the gender-neutral term “persons”. The Act does not define “marriage”, “husband” or “wife”. English common law has viewed marriage as the union of a male and a female consummated by heterosexual sexual intercourse. The words 25 “marriage”, “husband” and “wife” have been understood in religious traditions, and in heteronormative discourse, to refer to the ceremonial union of a male with a female. However, that is not an end to the matter. The Shorter Oxford English Dictionary contains a lengthy definition of marriage which includes: 30 • The relation between married persons; wedlock. • The action, or an act, of marrying; the ceremony by which two persons are made husband and wife. • A particular matrimonial union. 35 • Intimate union. • Civil marriage; a marriage performed by an officer of the state, without religious ceremony • Scotch marriage; a marriage by mutual declaration before witnesses, without other formality. 40 and the list goes on. The terms “husband” and “wife” also have lengthy definitions in the Shorter Oxford English Dictionary but are principally defined as: Wife … 1. A woman: formerly in general sense; in latter use restricted to a woman of humble rank, esp. one engaged in the sale of some commodity … such as 45 ­FISHWIFE, etc. 2. A woman joined to a man by marriage; a married woman. Husband … 1. Master of a house, the male head of a household. 2. A man joined to a woman by marriage. 3. With qualifying epithet. A saving, frugal, or provident man; an economist. 50

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While in religious discourse and in dominant heterosexual discourse the terms “­ married”, “husband” and “wife” refer to the union of a heterosexual couple as husband (man) and wife (woman), the meanings of these terms have changed across time. (For a discussion of the historical uses of the language of love and marriage see John Boswell Same Sex Unions in Premodern Europe, Villard Books, 1994.) Religious and dominant heteronormative meanings are not the only use of those terms in our society. By its nature, discrimination tends to affect socially vulnerable and marginalised members of our community. Marginalisation can occur in a number of ways including in the use of language. I do not consider religious or heteronormative usages of “marriage”, “husband” and “wife” as determinative in the present case. The terms “married”, “husband” and “wife” have been and are also used to refer to couples who do not conform to heteronormative or religious ideas of marriage. (For an example in New Zealand see: Atkinson Papers, MS Papers 4863-09 No. XXIII, 1 July 1901 at p 4. where in 1904, Alla Atkinson wrote a letter to her sister Dorothy Richmond mentioning “Blanche” and her companion, whom she referred to as Blanche’s “lady-husband”.) The terms have been and are used in a variety of ways, including in gay communities, to refer (either positively or negatively) to couples in committed (and often long-term, monogamous) homosexual relationships. As the dictionary definition above shows, the meanings of marriage are numerous and include meanings without reference to heterosexual unions. Acts of Parliament are always speaking. Meanings and applications that were not envisaged at the time an Act was passed must be possible as and when circumstances arise. In the present context, it is notable that Parliament has, since the passage of the Marriage Act in 1955, passed the Homosexual Law Reform Act, the Bill of Rights Act and the Human Rights Act which decriminalise and expressly protect against discrimination on the grounds of sexual orientation. At the time the Marriage Act was passed, Parliament would not have had in contemplation a meaning of “husband” or “wife” outside the meaning used in religious and heteronormative discourse to refer to male and female spouses. However, there are and have been “lady-husbands” in our society. A number of the appellants referred to themselves as “bridegroom” on the application for a marriage licence. Society is moving away from rigid sex and gendered roles. The gender-specific use of words by certain sectors of our society, therefore, should not be taken as an impediment to a meaning consistent with the Bill of Rights Act. It is a tenet of statutory interpretation, confirmed in s 4 of the Acts Interpretation Act, that the male pronoun includes the female, unless the statutory context otherwise requires. I see no damage done to the Marriage Act if the persons to a same-sex marriage use “wife” twice or “husband” and “wife”, as they choose, in their vows. The Act expressly allows “words to a similar effect” and I find that, interpreted consistently with the Bill of Rights Act, “words to a similar effect” can certainly accommodate same-sex marriage. The Crown submits that here the context otherwise requires. The Crown points to Schedule 2 of the Marriage Act which sets out who a man and a woman may not marry. Each relationship listed refers to the opposite-sex. Interpreting the Marriage Act to allow same-sex marriages would, according to the Crown, lead to absurdity because, under ­Schedule 2, a man may be prevented from marrying his sister but not his brother. I do not accept this submission. The intention of Schedule 2 is to prohibit marriage within certain degrees of relationship. Schedule 2 does not state that a woman may not marry a woman or that a man may not marry a man. Just as s 31(3) of the Marriage Act can be given a meaning that is consistent with the Bill of Rights Act, so can Schedule 2. In his judgment, which I have had the advantage of reading in draft form, Tipping J notes that “If a shift in the

Quilter v Attorney-General—Judgment 201 meaning of marriage can be discerned from such material [ie statutes passed since the Bill of Rights Act] that will support the case for a reinterpretation of the Marriage Act to accord with the shift”. In my view, given the recent legislative development of anti-discrimination law, such as the Bill of Rights Act and the Human Rights Act, which protects people from discrimination on grounds of sexual orientation, and the fact that words importing the 5 masculine gender include females and vice versa, the provisions that prevent a man from marrying his sister can be read to prevent a woman from marrying her sister. For completeness, I note that if I were to find, as the Crown wish me to do, that marriage can only be between a male and a female, New Zealand will be in the situation where a male to female transsexual person has the ability to marry a man of her choice, and have 10 that marriage registered and recognised by the state, but a homosexual person may not, in the face of legislation that seeks to prevent discrimination on the basis of sexual orientation. (Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603.) While this in itself is not determinative, it is preferable that all people in New Zealand have the ability to marry the person of their choice and have that marriage registered and recognised by the state. 15 Other legislative instruments The Crown submits that Parliament has enacted legislation subsequent to the Bill of Rights Act and the Human Rights Act that evidences a continued intention that marriage be confined to a union between a male and a female. They also draw the Court’s attention to certain regulations made pursuant to the Marriage Act. First is the definition of “partner” in the Domestic Violence Act 1995. The Crown submits that the clause evidences an intention that the concept of marriage excludes same-sex couples. I do not accept this submission. Both counsel have pointed out that the inability to marry, of which the provision speaks, can relate to de facto couples, one or both of whom are married to someone else, and indeed, to other prohibited circumstances. The definition in the Domestic Violence Act can be given a meaning, accepted by both counsel, that is consistent with the ability of same-sex couples to marry. I do not consider the fact that same-sex partners are explicitly acknowledged and given protection from domestic violence in New Zealand, in the same way as opposite-sex partners, evidences an intention to deny the ability of same-sex couples to marry. Parliament is seeking to include recognition of homosexual relationships in our society. Homosexual couples are deserving of the same protections against domestic violence as other people. Second, the Crown relies on a number of sections in the Births, Deaths, and Marriages Registration Act 1995. Section 30 provides that the Registrar-General must register declarations of the Family Court as to a person’s nominated sex (relating to gender reassignment), but not if the person concerned is then lawfully married to a person of the nominated sex. The Crown submits that the rationale for this must be an unwillingness on the part of ­Parliament to have persons of the same sex shown as married to each other. I do not consider s 30 of the Births, Deaths, and Marriages Registration Act 1995 determinative of the question before the Court. First, if the intention of Parliament was to deny the ability of same-sex couples to marry, it could and should have made that intention clear. Secondly, the provision was not the subject of a s 7 Bill of Rights Act report by the Attorney-General, which would have been expected if that was the intention of Parliament. Thirdly, assuming the intention of Parliament is as the Crown submits, I do not consider the provision to be a reasonable limit that can be justified in our free and democratic society. I discuss this point further below. The Crown has also drawn our attention to s 55 of the Births, Deaths, and ­Marriages Registration Act 1995 which refers to documents signed “by the husband, the wife, the celebrant, and 2 witnesses to the solemnisation”. The Crown submit that the use of

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the word “and” and not “or” evidences an ongoing intention by Parliament that marriage be between a husband (male) and a wife (female). I do not accept this submission. As I have set out above, society’s understanding of marriage is changing and there is a breaking down of rigid sex and gender divisions towards recognition of greater fluidity and complexity in human social relations. I note the rule of statutory interpretation that the masculine includes the feminine. I do not consider that allowing same-sex marriage does damage to the purpose of the section. The purpose of the section, as stated in the heading to the section, is that information about the marriage is to be sent to the Registrar. Accordingly, the section can be interpreted consistently with the ability to marry according to a person’s sexual orientation and for that information to be provided to the Registrar within 10 days. The Crown refers also to s 77(6)(c) Births, Deaths, and Marriages Registration Act 1995 which allows the Registrar to permit a marriage celebrant to inspect birth ­information for the purpose of investigating whether the parties to a proposed marriage are a man and a woman. The appellants’ counsel submits that this section can be given a meaning consistent with the Bill of Rights Act. He submits that the intention of the section is to allow clergy or other marriage celebrants who might have a conscientious objection to marrying same-sex couples, or transgender persons, to inspect the birth documentation to ensure they are acting in accordance with their religious canons. I accept this submission. The Crown referred us to the fact that the Marriage (Forms) Regulations 1995 refer to bride and bridegroom. The Crown submits that this is evidence of an ongoing intention by Parliament that marriage is between a male and a female. I have already set out above my view that religious or heteronormative use of language is not determinative in this case. Regulations are subordinate to legislation. (Interfreight Ltd v Police [1997] 3 NZLR 688.) If the correct interpretation of the Marriage Act 1995 is as I have found, regulations promulgated by the Governor-General inconsistent with the Act are ultra vires. The regulations do not alter my view of the correct interpretation of the Marriage Act. I turn now to s 4 of the Bill of Rights Act. Section 4 of the Act does not assist the Crown in the present case. To interpret the Marriage Act as I have done does not result in a finding that any provision of the enactment is impliedly repealed or revoked, or is in any way invalid or ineffective. To interpret the Marriage Act consistently with the Bill of Rights Act, I have not declined to apply any provision of the enactment by reason only that the provision is inconsistent with any provision of the Bill of Rights Act. I have preferred an interpretation consistent with the Bill of Rights Act, as directed by s 6 without transgressing s 4 of the Act.

Whether limiting marriage to persons of the opposite-sex is a reasonable limit as can be justified in a free and democratic society Since in my view it is possible to interpret the Marriage Act in a manner consistent with the Bill of Rights Act, it is unnecessary to consider the question of whether limiting marriage to persons of the opposite-sex is a reasonable limit as can be justified in a free and 40 democratic society. Given the interpretation of the Marriage Act preferred by the majority, however, I wish to comment on the application of s 5 of the Bill of Rights Act, because this is an important case with significant social consequences. The New Zealand courts have not previously had to consider the question of what is a reasonable limit that can be demonstrably justified in a free and democratic society. 45 However, our Bill of Rights Act is based on the Canadian Charter of Rights and Freedoms. (A copy of the Canadian Charter was annexed to the White Paper proposing a Bill of Rights for New Zealand tabled in Parliament.) Clause 1 of the Canadian Charter is very similar to s 5 of the Bill of Rights Act and the Canadian courts have had to consider this question. 50

Quilter v Attorney-General—Judgment 203 In R v Oakes [1986] 1 SCR 103, the issue for determination by the Supreme Court of Canada was whether a reverse onus of proof offended the presumption of innocence under the Canadian Charter in relation to criminal offending. The majority of the Court found that to establish that a limit on a Charter freedom is reasonable and demonstrably justified in a free and democratic society, two criteria must be satisfied. First, the objective, which the 5 measures responsible for a limit on the right or freedom are designed to serve, must be of sufficient importance to warrant overriding the protected right or freedom. Secondly, once a sufficiently significant objective is recognised, then the party invoking the limit must show that the means chosen are reasonable and demonstrably justified. I would respectfully adopt this analysis. 10 In my opinion, limiting marriage to opposite-sex couples is not an objective of sufficient importance to warrant overriding freedom from discrimination. There is not here a demonstrably greater benefit to society than the damage inflicted on the right to be free from discrimination. 15 A matter for Parliament? The Crown submits that a finding that same-sex marriage is lawful in New Zealand is of such social importance that it is a matter for Parliament and may have significant ramifications including in relation to polygamous marriage, marriage between siblings, tax, adoption, citizenship and social security entitlements. The Crown says that Parliament 20 should be able to regulate its own process including as to who can marry and what rights and obligations that affords. The Court should not usurp the function of Parliament, but I do not agree that the Court has no role in the present case. Parliament enacted the Bill of Rights Act and gave the Court certain functions in relation to that Act. Those functions include ascertaining whether there is discrimination in 25 legislation and, where there is a breach of s 19 of the Bill of Rights Act, whether the relevant Act can be given a meaning consistent with the Bill of Rights Act having considered ss 4, 5 and 6 of the Act. For the Court not to undertake those functions is to fail to perform the role Parliament has assigned. The question of whether the prohibition of polygamy or marriage between siblings is 30 in breach of the Bill of Rights Act is not before the Court. I do not wish to comment on the Court’s conclusion should such a question arise. That such a case may be brought cannot be a reason for the Court not to perform the function Parliament has directed in the present case. If such questions come before the Court, the Court will need to undertake an assessment of whether there has been discrimination and, if so, whether there is a breach of s 19 35 of the Bill of Rights Act, having considered ss 4, 5 and 6 of the Act. Should the legislature disagree with the interpretation of an Act given by the Court in the exercise of its functions under the Bill of Rights Act, Parliament has the power to amend the relevant Act and make explicit, for example, that marriage is exclusively to be understood as a contract between opposite-sex couples. 40 Ramifications beyond the Marriage Act 1955 The Bill of Rights Act ensures in s 20 the right to freedom of religion and the right to practise that religion in society. It was submitted that some people consider it an affront to their religious canons to allow same-sex couples to marry. However, New Zealand is a secular state. It does not have an official religion. It is not appropriate in New Zealand 45 today for a religious concept of marriage to prevail exclusively in our diverse and pluralistic society. The recognition of same-sex marriage does not deny the right to freedom of religion or the right to practise religion in our society. While there may be ramifications because of the recognition of same-sex marriage in relation to tax, adoption, citizenship and social security entitlements, I am not 50

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p­ ersuaded that these ramifications are such that the ability of same-sex couples to marry can be denied. The fact that the recognition of same-sex marriage may have consequences towards ­elimination of discrimination on the basis of sex and sexual orientation in other areas of civil society cannot be a reason for the Court to refuse to interpret the Marriage Act as directed by the Bill of Rights Act. In reaching my decision, a ramification with which I am concerned is that an interpretation of the Marriage Act to allow same-sex marriage may result in a requirement for same-sex couples to disclose their relationships to social agencies with a resulting reduction in social welfare entitlements; or to face investigation by social agencies for a failure to do so in the same way as I understand opposite-sex couples are currently investigated. My concerns are twofold. The first is that in a society still afflicted by homophobia, such exposure of same-sex couples may increase, not decrease, violence and discrimination. The second is that, as a consequence of recognition of same-sex marriage, some homosexual couples may be subject to economic disadvantage. I consider it arguable that any reduction of social entitlements for those who are married or in de facto relationships (heterosexual or homosexual) may be discriminatory on the basis of family status, which includes relationship status. The matter is not presently before the Court and we have not received argument on whether such reductions are discriminatory or whether they can be justified in our free and democratic society. I would, however, urge the legislature to look closely at a situation of reduced social entitlements for persons in relationships. I see little justification for a reduction in social entitlements for people in relationships as compared, for example, to those who are single and living together as flatmates, with family or, indeed, alone. Conclusion I find that the appellants have been discriminated against on the basis of sex and sexual orientation. The Marriage Act, as interpreted consistently with the Bill of Rights Act, entitles the appellants to marry and to have that marriage recognised by the state. To allow same-sex couples the freedom to marry, in accordance with the marrying couples’ “conscientious principles” (as per Lord John Russell in 1836), is an important step in the realisation that all human beings are deserving of concern, respect and equality. I would allow the appeal and make a declaration accordingly.

12 Commentary on AMO’H v AJO’H (‘Caldwell v Caldwell’) The Case of the Missing Woman ERIN EBBORN

The Original Decision AMO’H v AJO’H was a judgment under the Care of Children Act 2004 (NZ).1 The Care of Children Act is the core piece of legislation to determine how the responsibilities for caring for children are divided and to resolve disputes about children’s upbringing, typically following parental separation.2 Disputes about upbringing are commonly known as ‘guardianship disputes’. The issues frequently in dispute include what names the child should have, medical decisions, religious upbringing, education and where a child should live. In AMO’H the guardianship dispute was about whether the children should live in Australia or New Zealand. Mrs O’H sought to return home to Australia with the children.3 Mr O’H wanted the children to remain living in New Zealand. This is commonly known as a ‘relocation case’.4 The catalyst for Mrs O’H seeking to relocate to Australia was her depression. Her family lived in Australia and therefore she argued she would be better supported emotionally and financially if she were near her family. If she were happy and well then the children would be happy and well too and thus their best interests and welfare would be met. Mr O’H opposed the relocation primarily because of the effect it would have on his relationship with his children, particularly the youngest child who was only a year old. While the law provides guidance in terms of principles and considerations, each case turns on its own facts. The arguments for why children should be permitted to go can be finely balanced against the arguments for why they should be required to stay. To this extent,

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AMO’H v AJO’H [2010] NZFC 48, [2011] NZFLR 298. This is primarily between the two parents though leave can be granted so that applications from other family members or caregivers can be considered. 3  I have chosen to refer to the woman as ‘Mrs O’H’ because it reflects how she has remained connected to the marriage despite separation and that she is not treated as an individual independent from her past role in the relationship and her parenting. This is in comparison to ‘Ms Caldwell’ in the re-written judgment. 4  See R George, Relocation Disputes: Law and Practice in England and New Zealand (Oxford, Hart Publishing, 2014). 2 

206  Erin Ebborn the role of the Family Court Judge is significant because determining a relocation case is a weighing up exercise and therefore open to individual assumptions and preferences. In the original decision the children were not permitted to relocate to Australia. Therefore Mrs O’H remained living in New Zealand. The AMO’H decision is an example of how societal presumptions about motherhood and the role of women can influence decision-making.

The Silenced Victim The original decision noted that the parental relationship was ‘not healthy’ and if it did not improve it was likely to impact on the children.5 Judge von Dadelszen said specialist counselling had not helped. The decision referred to an ‘allegation of assault’6 and recorded that Mrs O’H’s temporary protection order7 and occupation order8 were discharged by consent some four months later.9 There was little other reference to that proceeding under the Domestic Violence Act 1995 (NZ). Presumably then, there was no finding of fact in respect of the assault and a finding was not required to be made under the Care of Children Act proceedings. The assault remained ‘alleged’: Mrs O’H’s truth against Mr O’H’s denial. The power and control dynamic of an abusive relationship was alluded to as part of the evidence from the court-appointed psychologist. He said Mrs O’H:10 [F]eels bullied and intimidated by [the father], not least by his dismissal of the likely impacts of his assault on her and his inclination to minimise the meaning of his assault on her. She also describes a range of behaviours including derogatory and dismissive verbal comments and gestures.

There was no exploration in the original decision of the history of abusive behaviour, the extent to which that behaviour might have contributed towards Mrs O’H’s depression or whether remaining in New Zealand would expose her to on-going abuse, other than an oblique reference to tension at changeover.11

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AMO’H (n 1) [12]. ibid [24]. 7  A temporary protection order is an order made pursuant to the Domestic Violence Act 1995 (DVA) on an urgent basis, without notice to the respondent, when a judge is satisfied that there is a risk of harm or undue hardship to the applicant or a child of the applicant’s family (or both) if the order is not made. 8  An occupation order is an order made pursuant to the DVA 1995 which grants the applicant (and children) the exclusive right to live in the family home. The applicant can require the perpetrator of violence to leave the dwelling. 9  When a temporary order made under the DVA 1995 is defended, s 76 requires the Court registrar to allocate a hearing date as soon as practicable, normally within 42 days after the defence is filed. While it is possible that Mrs O’H simply chose not to continue with her application under the DVA 1995 it is more likely, given the timeframe, that her application was defended and the application was withdrawn prior to hearing. 10  AMO’H (n 1) [50]. 11  The risk of exposure to on-going abuse, power and control through contact changeover was an issue raised in the Ministry of Justice consultation document Strengthening New Zealand’s Legislative Response to Family Violence (Wellington, Ministry of Justice, 2015) 26. It was given as an example of the disconnect between the expectations placed on parents under the CoCA 2004 to make parenting arrangements work and the protection afforded under the DVA 1995. There is evidence that issues of domestic violence are prevalent in relocation disputes: R Kaspiew, J Behrens and B Smyth, ‘Relocation Disputes in Separated Families Prior to the 2006 Reforms: An Empirical Study’ (2011) 86 Family Matters 72. 6 

AMO’H v AJO’H (‘Caldwell v Caldwell’)—Commentary 207 Mr O’H was unrepresented in the proceedings. He cross-examined Mrs O’H.12 There was little commentary about Mrs O’H’s oral evidence during the hearing regarding family violence. The presence of family violence was an issue mentioned in passing without consideration of the impact it would have had on Mrs O’H.13

A Mother’s Financial Security is Unimportant Mrs O’H was living in the former family home with her income being a domestic purposes benefit.14 The home would need to be sold and the proceeds divided.15 The original decision indicated that Mr O’H would be able to buy his own home following the division of relationship property and based on his employment. The information about Mrs O’H’s career was limited. She was qualified to be a relief teacher but there was no information about the extent to which she had been out of the paid workforce. The lack of support in New Zealand kept Mrs O’H on a low income as a beneficiary. There was the possibility that she might have needed to spend her relationship property settlement to maintain herself and the children rather than being able to invest it, like Mr O’H could, in property. Mrs O’H proposed to off-set child support against Mr O’H’s travel costs if she was permitted to relocate. This was on top of the proposal that they set aside $64,000 from the relationship property pool towards a travel fund. Both proposals potentially impacted Mrs O’H’s personal long-term financial security. There was no commentary in the decision about the benefit to the children of living in a household where there was financial security. For Mrs O’H, her ability to become financially independent was on hold subject to her parenting duties.16

Post-Natal Depression Should be Tolerated by the Mother The original decision summarised the medical information about Mrs O’H’s depression. There was discussion about whether relocating would assist with the depression or make little impact. The evidence was that her depression was ‘moderate to severe’ but that the children were normal and well-adjusted.17 There was a possibility that the children would be negatively affected if Mrs O’H were required to stay in New Zealand. The depression appeared to be normalised in the decision as being ‘common’ and therefore something which should be tolerated rather than treated as special. There was a comment that Mrs O’H’s ‘lack of energy and enthusiasm … [could be] … typical of any mother of several 12 

AMO’H (n 1) [36]. risk assessment in respect of the children as required by (then) s 60 of the CoCA 2004 would have been conducted during the proceedings. However, that risk assessment does not take into account the impact on the partner. 14  The domestic purposes benefit was a form of government welfare assistance to sole parents. It is currently called ‘sole parent support’. 15  AMO’H (n 1) [10]. 16  For an analysis of legal obstacles to autonomous motherhood, see SB Boyd, ‘Autonomy for Mothers: Relational Theory and Parenting Apart’ (2010) 18 Feminist Legal Studies 137; SB Boyd et al, Autonomous Motherhood? A Socio-Legal Study of Choice and Constraint (Toronto, University of Toronto Press, 2015). 17  AMO’H (n 1) [34]. 13  A

208  Erin Ebborn children who has a new baby in the home’.18 In short, Mrs O’H should just put up with it because that’s what mothers do. There was no consideration of Mrs O’H, as an individual independent from her role as a mother, being entitled to live a life that was full of energy, rest and enjoyment. Dare we say pleasure? The additional comment that ‘the reality is that with four young children on one’s own, there are limitations to what that parent can do socially’ was a further indictment against any notion of Mrs O’H being entitled to a ‘self ’ distinct from her biological ­responsibilities.19 In this decision it is almost impossible to imagine Mrs O’H being anything other than at the beck and call of her children. Adult conversation, time alone, privacy or even recreational sexual activity were not a consideration. So who was Mrs O’H outside of being a mother? In this decision there was no room for her to be anything else but a mother.20 The irony here is that Mrs O’H’s competence as a mother was detrimental to her own court case. The evidence of the psychologist was that she was ‘a sensitive and effective mother who demonstrated good parenting skills and an affectionate attachment to all her children’.21 Mrs O’H’s ability to manage the children, despite her depression, meant that the children’s needs were being met by her even if her own need to be mentally happy and healthy suffered. It is arguable that had she been less capable, had the children’s needs been compromised by her health and therefore there was a greater need for her to go home, then perhaps she would have been successful.

A Good Mother Would Sacrifice her Own Needs For Mrs O’H to live in Australia, she would need to sacrifice retaining the care of her ­children. After all, the order preventing removal only prevented the removal of the children from New Zealand. It did not prevent Mrs O’H from travelling. The judge relied on the fact that Mrs O’H would not abandon the children. The expectation that a parent will sacrifice for the children is a principle in case law. A commonly cited case in relocation matters is Justice Fisher’s decision in D v W where he said: ‘[p]arental love requires an unconditional and irrational commitment to the child’.22 The gendered impact of this principle in a relocation case is obvious. As soon as a mother has her own reasons for relocating she is not meeting the expectation of unconditional and irrational commitment to her child.23 A counter-strategy is to make the court choose between the two parents if the mother is prepared to take the stance that she will leave no

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ibid [56]. ibid [59]. 20  On the legal construction of compulsory motherhood, see C Smart, ‘The Woman of Legal Discourse’ (1992) 1 Social & Legal Studies 29. 21  AMO’H (n 1) [46]. 22  D v W (1995) 13 FRNZ 336 (HC) 349. 23  See further R Field, ‘Commentary on U v U’ in H Douglas et al (eds), Australian Feminist Judgments: Righting and Rewriting Law (Oxford, Hart Publishing, 2014). 19 

AMO’H v AJO’H (‘Caldwell v Caldwell’)—Commentary 209 matter what.24 But it is a high risk approach with the court left in the position of potentially trying to call a bluff.

Mr O’H’s Freedom is Unfettered by his Parenthood Mr O’H had choices. He had an established career which included previously working in a ‘sea job’ that enabled him to have flexibility in his location every second month. Mr O’H had chosen to live overseas in the past. A frustration for mothers in relocation cases can be that because it is known that she will not leave her children, she remains locked in a location where she does not want to be only to then have the father relocate. A core issue in the original decision was the children’s relationship with their father, in particular, the time-sensitivity for ‘T’ who was an infant and was still developing an attachment to Mr O’H. Mrs O’H’s position was that the effect of relocating could be minimised if the father was ‘pro-active’.25 The consideration was what the children would lose in terms of their relationship with Mr O’H. There was acknowledgment that Mrs O’H would try to foster the relationship. There was little discussion about any duty on Mr O’H to foster his relationship with the children other than speculation about whether or not he would follow them to Australia. He was in a position of power. His ability to remain steadfast and uncompromising on his desires, identified in the decision as a ‘strategy’, resulted in Mrs O’H’s desires being subordinate not only to those of the children, but to Mr O’H’s also. The psychologist’s comment that ‘children who lose parents usually experience it most of their lives’ implied a fault on the part of Mrs O’H that she would permit that to occur rather than on the part of Mr O’H in failing to remedy it.26 Mrs O’H’s duties as a mother extended to nurturing Mr O’H’s relationship with the children, even when he would not take steps to provide that nurture. The judge expressed this by saying ‘she must do that for her children’s sake in order that their relationship with the father can continue unaffected, something which she simply must put ahead of what she perceives to be her own needs’.27

The Feminist Judgment The need for confidentiality in the Family Court leads to the identities of the participants often being anonymised. It might be that new names are invented, names abbreviated or replaced with letters unrelated to the original parties. Sometimes the parties are referred to by their roles rather than by name. In AMO’H v AJO’H the parties’ names were replaced

24  This occurred, eg, in D v S [2002] NZFLR 116 (CA), although in that case, the High Court Judge was satisfied that the mother’s decision to return to Ireland was genuine and not a tactical realignment to force a choice to be made between the two parents. 25  AMO’H (n 1) [16]. 26  ibid [63]. 27  ibid [118]. On the gendered impact of relocation decisions, see further Field, ‘Commentary on U v U’ (n 23). In B and B: Family Law Reform Act 1995 [1997] FamCA 33 [10.58]–[10.65], the Full Court of the Family Court of Australia acknowledged that, in practice, restraints on relocation apply only to primary carers, not to non-resident parents.

210  Erin Ebborn with letters and the parents were referred to as ‘the mother’ and ‘the father’ throughout the original decision, though for Mrs O’H her identity was never separated from her role as mother and the expectations that came along with that role. Her future remained heavily intertwined with the fortunes of Mr O’H despite their separation. The feminist judge, on the other hand, has used fictitious names for all parties. This humanist approach personalises the participants with first and last names.28 In addition the children are given their own identities. This contrasts with the original decision where the children do not feature strongly even though their welfare and best interests are at the heart of the legislation. Section 6 of the Care of Children Act requires the judge to take into account any views expressed by the children. The feminist judgment more clearly identifies and attributes the views and wishes of the children individually and acknowledges their different ages and the impact this has on their stages of development. The feminist judge places less emphasis on the clinical aspect of depression. The diagnosis is accepted without the lengthy description of the medical notes or inspection of the dosage of medication that occurred in the original decision. This affords the mother more privacy in terms of her medical history. The feminist judge acknowledges the synchronicity between the mother’s well-being in the context of her being the primary caregiver and the children’s well-being.29 The feminist judge has also subjected the father’s position to as much scrutiny as the mother’s. The judge calls the father’s bluff on his ‘tactical decision’ and decides it is likely that he will relocate to Western Australia. The onus of unconditional and irrational commitment to the child is shared rather than the sole domain of the parent proposing to relocate. Section 4 of the Care of Children Act removes any presumption that the welfare and best interests of a child requires that child to be placed into the day-to-day care of a particular person because of that person’s gender. The principles of s 5 of the Act promote co-operation between parents and guardians including ensuring continued relationships. The feminist decision still weighs up the advantages and disadvantages for the children of both parents’ arguments but, in the particular circumstances of this case, has been able to align the welfare of the mother with the welfare and best interests of the children.30 ­Unsurprisingly, the mother is permitted to relocate.

28  Family law cases continue to be reported using parties’ initials more frequently than their actual names to avoid publicising sensitive family matters. However, fictitious names have been used in relocation cases including Port v Jones (FC Christchurch FAM-2006-009-2510, 17 December 2010), Figgs v Figgs [2011] NZFLR 86 (FC) and Stanley v Collins [2011] NZFLR 215 (FC). 29  See Field, ‘Commentary on U v U’ (n 23). 30  For a different feminist approach to balancing parental interests and children’s best interests, see J Crowe, ‘U v U’ in Douglas et al, Australian Feminist Judgments (n 23).

Caldwell v Caldwell [Relocation]

Family Court  Hastings 17, 18, 24 May 2010 Judge Ballantyne

FAM-2009-020-36

JUDGE BALLANTYNE. Introduction [1] This case is about where four children, Samuel (aged nine), Angus (aged six), Paul (aged three), and Rebecca (aged one) should live. [2] Their mother, Ms Linda Caldwell, wants to relocate to Western Australia with the children to receive practical and emotional support from her family and friends who live there. She believes that her parenting abilities would be enhanced by such a move, which would be beneficial in terms of the children’s welfare and best interests. [3] Their father, Mr Geoff Caldwell, wants the children to remain living in New Z ­ ealand so they can continue to have regular contact with him, which he believes will enhance the children’s welfare and best interests. He is opposed to the children relocating to Western Australia. [4] I must consider the advantages and disadvantages of each option to determine which outcome is in the welfare and best interests of Samuel, Angus, Paul, and Rebecca in their particular circumstances. Background [5] Ms Caldwell was born and raised in Perth, Western Australia. She is a qualified teacher. Mr Caldwell was born and raised in New Zealand. He lived in Western Australia for a number of years while working as a marine engineer. The parties were married in Western Australia in December 2000 and the parties’ eldest child, Samuel was born in Western Australia shortly after. [6] The parties moved to New Zealand in September 2003. However, Mr Caldwell remained working as a marine engineer off the coast of Western Australia on a month-on, month-off schedule. His months off were spent at home in New Zealand with his family. The parties’ next two children, Angus and Paul, were born in New Zealand while the parties were still together. [7] In February 2008 Ms Caldwell was diagnosed with clinical depression by her GP, Dr Richard Jamieson. [8] In November 2008 Mr Caldwell left his job as a marine engineer to be more available to his family. He then obtained employment as a driver for a local farm. [9] The parties separated in early 2009 while Ms Caldwell was pregnant with Rebecca. [10] Mr Caldwell successfully sought an order that the parties’ children not be removed from New Zealand on 20 January 2009. The children’s home base was declared to be the Hawke’s Bay. On 3 February 2009 Ms Caldwell successfully obtained a temporary

212  Ruth Ballantyne p­ rotection order and an occupation order under the Domestic Violence Act 1995 in her favour. These orders were discharged with consent in June 2009. [11] On 20 February 2009 Ms Caldwell unsuccessfully sought permission to temporarily relocate to Western Australia for a six-month period, which encompassed Rebecca’s birth in March 2009. [12] On 6 May 2009 an interim parenting order was made granting day-to-day care of the children to Ms Caldwell. Mr Caldwell was to have regular contact with the children. This interim order has been varied by agreement. [13] In June 2009 and February 2010 clinical psychologist Mr Peter Bowker provided reports to the Court under s 133 of the Care of Children Act 2004. [14] In July 2009 Mr Caldwell returned to his former job as a marine engineer off the coast of Western Australia for a period of five weeks to save money to purchase tools to start work as a diesel engineer (which involves repairing and maintaining vehicles). [15] The relocation hearing between the parties was heard on 17 and 18 May 2010. Ms Caldwell and Mr Caldwell gave oral evidence, as did Dr Jamieson and Mr Bowker. Ms Ingrid Squire represented Ms Caldwell at the hearing. Mr Caldwell represented himself with assistance from a McKenzie Friend (after initially receiving legal advice). Lawyer for child Ms Dinah Kennedy represented Samuel, Angus, Paul, and Rebecca’s interests. Current situation [16] Ms Caldwell and the children are living in the former family home. Ms Caldwell receives a domestic purposes benefit. She is unable to work as a result of her childcare responsibilities. She has some assistance from a student nanny two days a week. She ­otherwise receives little practical or emotional support, including from Mr Caldwell or his family. She seeks leave to relocate to Western Australia with the children in order to obtain support from her family. [17] Mr Caldwell lives with his mother. He is about to start a new job as a diesel engineer and will earn approximately $750 per week after tax. Mr Caldwell has frequent contact with the children, caring for them every Tuesday afternoon and overnight every Friday. When the children stay overnight Mr Caldwell and the children stay at Mr Caldwell’s father’s home. Mr Caldwell wants the children to remain living in New Zealand and to move towards a more equal shared care arrangement over time. [18] The parties’ family home will be sold and the proceeds divided between them after the current proceedings are resolved. Both parties wish to purchase their own homes with their share of the proceeds. [19] There is a significant degree of conflict between the parties (especially at contact changeover times) and there is a concern that this will have negative consequences for Samuel, Angus, Paul, and Rebecca. Counselling has not alleviated this conflict. [20] Ms Caldwell has completed the Parenting Through Separation Programme. Mr Caldwell has not yet attended this course, but he will be required to do so. The legal framework [21] The Care of Children Act 2004 governs all relocation cases. According to s 16(1) of the Act, a child’s guardians have a variety of “duties, powers, rights, and responsibilities” under the Act. These include providing for the day-to-day care of the child, contributing to the child’s “intellectual, emotional, physical, social, cultural, and other personal development”, as well as “determining for or with the child, or helping the child to determine, questions about important matters affecting the child”. Under s 16(2) of the Act, changes to a “child’s place of residence … that may affect the child’s relationship with his or her

Caldwell v Caldwell [Relocation]—Judgment 213 parents and guardians” are defined as an important matter affecting a child. Thus, relocation cases are about the exercise of guardianship. [22] Section 44(1) of the Act states “[i]f 2 or more guardians of a child are unable to agree on a matter concerning the exercise of their guardianship” they may “request counselling in respect of the dispute” or they may “apply to the court for its direction”. Under s 44(3) of the Act, once an application to the court has been made, “the court may make any order relating to the matter that it thinks proper”. In making such an order, the court must take into account the principles set out in ss 4–6 of the Act. [23] Section 4 states that the “welfare and best interests of the child must be the first and paramount consideration”. This consideration must be specific to “the particular child in his or her particular circumstances”. [24] Section 5 provides an inclusive list of principles that may be relevant to a particular child’s welfare and best interests. Section 5 provides as follows: 5. Principles relevant to child’s welfare and best interests—The principles referred to in section 4(5)(b) are as follows: (a)

the child’s parents and guardians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child’s care, development, and upbringing: (b) there should be continuity in arrangements for the child’s care, development, and upbringing, and the child’s relationships with his or her family, family group, whānau, hapū, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents): (c) the child’s care, development, and upbringing should be facilitated by o­ ngoing consultation and co-operation among and between the child’s p­ arents and guardians and all persons exercising the role of providing day-to-day care for, or entitled to have contact with, the child: (d) relationships between the child and members of his or her family, family group, whānau, hapū, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing: (e) the child’s safety must be protected and, in particular, he or she must be protected from all forms of violence as defined in section 3(2) to (5) of the Domestic Violence Act 1995 (whether by members of his or her family, family group, whānau, hapū, or iwi, or by other persons): (f) the child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

[25] Section 6 states that in proceedings involving guardianship “a child must be given reasonable opportunities to express views on matters affecting the child” and that “any views the child expresses (either directly or through a representative) must be taken into account”. [26] The United Nations Convention on the Rights of the Child (UNCROC) also has particular relevance to relocation cases. Article 9.3 of UNCROC states that: 9.3 States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

[27] Article 18.1 of UNCROC states that: 18.1 States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.

214  Ruth Ballantyne Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

[28] I note that the principles contained in Articles 9.3 and 18.1 of UNCROC are wholly consistent with those contained in ss 4 and 5 of the Care of Children Act 2004, especially in terms of their focus on the best interests of the child in question. [29] I am bound by the recent Court of Appeal case Bashir v Kacem [2010] NZCA 96, [2010] NZFLR 865, which held that relocation decisions must be based on an individualised assessment of what is in the welfare and best interests of the children concerned. As the Court of Appeal said at [50]: [A] court should consider each of the s 5 principles to determine whether it is relevant and, having identified those principles that are relevant, should take account of them in determining the best interests of the child. Because the analysis must be undertaken in the context of the circumstances of the particular case, the court must evaluate how the relevant principles should be taken into account—the assessment is a highly individualised one which cannot be undertaken in a formulaic way.

[30] The primacy of the welfare and best interests of the child in such decisions was also reinforced by the earlier Court of Appeal decision D v S [2002] NZFLR 116, where Richardson P said at [47] that “presumptive or a priori weighing is inconsistent with the wider all-factor child-centred approach required under New Zealand law”. The children’s views [31] In making my decision I must identify and weigh all relevant factors to determine which outcome is in the welfare and best interests of Samuel, Angus, Paul, and Rebecca in their particular circumstances. Under s 6 of the Act, I am obliged to ensure that Samuel, Angus, Paul, and Rebecca have each had a reasonable opportunity to express their views, and I must take their views into account. I set out each of the children’s views below. Samuel [32] Samuel is nine years old. He was two and a half years old when he moved to New Zealand with his parents. He has (through Ms Kennedy and Mr Bowker) clearly expressed his desire to remain living in New Zealand, which is not surprising given this is where his home, school, and friends are, and he has no memories of his earlier life in Australia. [33] Ms Kennedy emphasised that Samuel would feel grief at being separated from his father and that contact with his father will become even more important as Samuel gets older. She also said that modern technology would be unable to compensate for this lack of face-to-face contact. There is also a concern that the conflict between the parents is already having a negative impact upon Samuel. Mr Bowker noted that if the relocation were permitted Samuel would have “fairly strong memories” of his father and would maintain “a level of attachment” with his father. [34] In making my final decision I have taken Samuel’s views into account, although his views are not the only factor that I must take into account. Angus [35] Angus is six and a half years old. He was born in New Zealand and has lived here all his life. He has also expressed (through Ms Kennedy and Mr Bowker) his wish to stay in New Zealand. [36] As with Samuel, Ms Kennedy emphasised that Angus would experience sadness at being separated from his father and said that he will need more face-to-face contact with his father as he gets older, not less. Mr Bowker also noted that Angus would retain “fairly

Caldwell v Caldwell [Relocation]—Judgment 215 strong memories” and “a level of attachment” with his father between contact visits if the relocation were to occur. [37] In making my final decision I have taken Angus’s views into account. However, they will not necessarily be determinative, because I must make my decision based on Angus’s welfare and best interests, rather than based solely on what Angus wants. Paul [38] Paul is almost three years old. He was also born in New Zealand and this life is all he knows. Little evidence was given about his views due to his young age. Thus he has not expressed a view for me to take into account in making my decision. However, any decision I make must be in Paul’s welfare and best interests. [39] Mr Bowker believed that if the relocation were permitted, Paul would remember his father, but would have trouble remembering him if he had contact with him for less than four weeks a year. Mr Bowker noted that it would be “a very limited amount of time to be having an experience with Dad”. Rebecca [40] Rebecca is just one year old. She was born in New Zealand after her parents had separated. She is beginning to form an attachment to her father, but this attachment is not yet secure. Her views were not expressed (either to me or to a representative) due to her age, thus there are no views to be taken into account in making my decision. However, any decision I make must be in her welfare and best interests. [41] Mr Bowker was concerned that if the proposed relocation were to occur (and Mr Caldwell were to remain behind in New Zealand), Mr Caldwell would be “presenting as a virtual stranger” each time Rebecca had contact with him due to her young age and the length of time between contact visits. Mr Bowker believes there is a risk that Rebecca will lose her relationship with her father entirely if they are apart for a significant length of time. The proposed relocation [42] If Ms Caldwell is permitted to relocate to Western Australia with the children she initially plans to live with her parents (in their large home) in Mandurah, which is a 40-minute drive south of Perth. Ms Caldwell’s brother also lives in Western Australia, as do several of her close friends with whom she has kept in touch since moving to New Zealand. With the support of her family (particularly in terms of childcare assistance) she would like to obtain employment as a relief teacher and ultimately purchase her own home in a similar area. [43] Ms Caldwell acknowledges that it is important for the children to have a relationship with their father and that he currently fulfils an important role in the older children’s lives. She intends to continue to support and foster Mr Caldwell’s relationship with the children and her evidence in this regard was convincing to both Mr Bowker and myself. If Ms Caldwell is permitted to relocate (and Mr Caldwell remains behind in New Zealand), she accepts that this would affect Mr Caldwell’s relationship with the children but believes this can be overcome by “constant communication” and regular face-to-face contact. [44] If Mr Caldwell does remain behind in New Zealand, Ms Caldwell proposes that the children would have weekly contact with their father via Skype and email, as well as physical contact with him at least four times per year. [45] The approximate cost of return flights for one adult and four children from Perth to Napier (during peak school holiday times) is $4,000. Ms Caldwell is prepared to let the children miss school on occasion to enable cheaper flights to be purchased. It would be more economical for Mr Caldwell to fly to Australia to see the children than it would be for the four children (who still have to be accompanied by an adult) to fly to Napier.

216  Ruth Ballantyne [46] Until the parties’ former family home is sold neither party can afford to pay for contact visits in Australia or New Zealand. Once the home has been sold, $64,000 from the proceeds of sale will be put aside to put towards the cost of contact. Ms Caldwell’s parents are also prepared to pay for the children to visit Mr Caldwell in New Zealand once every year. Advantages of relocation: enhanced wellbeing of primary caregiver [47] Ms Caldwell believes that the proposed relocation would significantly improve her own mental health by allowing her to access both emotional and practical assistance from her family and friends who live in Western Australia, and that this would have positive flow-on effects for the children by enabling her to be a better parent. [48] Ms Caldwell’s mental health is particularly relevant in this case because she suffers from moderate to severe clinical depression as diagnosed by Dr Jamieson (who regularly sees patients suffering from depression) in February 2008. Mr Bowker also agreed with this diagnosis and the finding that Ms Caldwell’s depression is in the moderate to severe range. [49] Initially Ms Caldwell was prescribed a herbal remedy and given access to counselling. In June 2009, after seeking further medical advice, Ms Caldwell started on a course of anti-depressant medication. Dr Jamieson increased the dosage to double the usual amount in February 2010 due to a potential risk of the “depression deepening or worsening and not just getting better”. [50] Clinical depression is a serious illness and is much more than merely feeling sad. It can have a significant ongoing impact on an individual’s wellbeing and daily life. During the hearing, Dr Jamieson described clinical depression in the following way: Depression is a condition which—cannot simply be described as “feeling sad”. One also needs to see the symptoms of that becoming quite pervasive into all areas of life. Typically with tearfulness, may lead to anger, it may lead to loss of motivation, loss of concentration, loss of physical energy and generally affecting life.

[51] Dr Jamieson acknowledged the possibility that relocating to Western Australia would not improve the mother’s wellbeing because depression is not strictly locationdependent, with which Mr Bowker and Ms Kennedy concurred. However, Dr Jamieson was clear that Ms Caldwell’s depression might be lessened by an increase in support. Mr Bowker (who has a significant amount of experience in treating depression and providing psychological reports for the court) agreed that Ms Caldwell “would have greater psychological resources available to her if the relocation [was] allowed, thus ameliorating the risk to the children”. [52] Mr Bowker points out that Ms Caldwell is the children’s primary caregiver and that all of the children have a strong attachment to her. This means that her emotional wellbeing is likely to have a significant impact upon the children. I note that Ms Caldwell has set admirably high standards for herself as a parent, and believes she would be better able to meet these standards with the assistance of her family in Western Australia. All the evidence before me indicates that even while suffering from clinical depression she is an extremely competent and impressive parent. Any improvement in the quality of her parenting, though, can only be in the welfare and best interests of the children. As Ms Squire rightly pointed out, the legislative standard focuses on the best interests of the children, not merely what is adequate for them. Advantages of relocation: close relationship with extended family in Australia [53] If the relocation were permitted Samuel, Angus, Paul, and Rebecca would be able to develop a much closer relationship with their grandparents and other family members

Caldwell v Caldwell [Relocation]—Judgment 217 living in Australia. Ms Caldwell and the children would be living with the children’s grandparents initially and their uncle and cousin live a 45-minute drive away. The further development of new familial relationships is likely to have a positive impact upon the children. It would also be in line with s 5(b) of the Care of Children Act 2004 which states that a “child’s relationships with his or her family, family group, whānau, hapū, or iwi, should be stable and ongoing”, as well as s 5(d) which states that “relationships between the child and members of his or her family, family group, whānau, hapū, or iwi should be preserved and strengthened”. Disadvantages of relocation: reduced contact with father [54] If Mr Caldwell remains behind in New Zealand, Samuel, Angus, Paul, and Rebecca would have much less face-to-face contact with their father than they currently enjoy. There is no doubt that seeing their father less would have a negative impact upon the ­children’s ongoing relationships with him. The wonders of modern technology can never fully replicate a face-to-face parent-child relationship. [55] Ms Kennedy was concerned about the significant reduction in the children’s face-to-face contact with their father that would occur if the proposed relocation were permitted and Mr Caldwell remained living in New Zealand. Ms Kennedy emphasised s 5(a) of the Act, which states that parents have the “primary responsibility” for their children’s “care, development, and upbringing”, and noted that, under s 5(b) of the Act, children “should have continuing relationships” with both of their parents. Ms Kennedy submitted that these principles could not be upheld if Ms Caldwell and the children relocated to Western Australia. [56] Mr Bowker’s evidence was clear that the proposed relocation would significantly weaken the children’s attachment to their father and that the children would suffer “quite a significant loss”. This is contrary to s 5(d) of the Act, which states that relationships between children and their “family, family group, whānau, hapū, or iwi should be preserved and strengthened”. Mr Bowker also stated that the proposed contact arrangements (including face-to-face visits, Skype, and email) were insufficient for the children to maintain a meaningful relationship with their father and that this would have a negative impact upon the children. As Mr Bowker said: Children need to be validated and affirmed by their parents and the fact of having a father there who […] can do activities there with them is affirming for a child, [and] gives them something to identify with, a sense of connection with the world. Also an important affirmation of their achievements, of their abilities. Fathers play a very important role in watching the children and recognising the accomplishments and achievements. I think historically it is a role we have often undervalued and failed to appreciate. So those things would simply be missing from a child’s life, that week to week, day to day contact is important, so there may be some depressive symptoms, sadness, [and] some loss of function, perhaps. You know, children when they experience loss may become a bit disinterested in what they are doing and what’s going on in their lives. I said sometimes they can become aggressive, it gets played out in difficulty managing conflict.

Mr Bowker went as far as to say that “children who lose parents usually experience it most of their lives”. [57] Were I to unreservedly accept these arguments, this would be tantamount to dismissing all relocation applications, regardless of the individual circumstances involved. Every relocation case where a parent (who has previously been involved in their children’s lives) is left behind will inevitably involve a degree of reduction in contact in c­ ontravention of ss 5(a), 5(b), and 5(c) of the Act. However, these principles are framed using the permissive “should” rather than “must”. This is legislative recognition that these principles cannot be upheld in all circumstances.

218  Ruth Ballantyne [58] These principles do not (and should not) determine the outcome of a relocation application. Rather, they provide matters to consider in determining what is actually in the welfare and best interests of the particular children in question in their particular circumstances, which is legislatively prescribed in s 4(1) of the Act as the “first and ­paramount consideration”. Other “matters relevant to the child’s welfare and best interests” not listed in s 5 can also be taken into account according to s 4(6) of the Act. Disadvantages of relocation: reduced contact with paternal family [59] If the relocation were permitted, the children would have significantly less contact with their paternal grandparents. No evidence was provided as to how often they spend time with their paternal grandmother, but they see their paternal grandfather every week as their overnight contact with their father takes place at the paternal grandfather’s home. This reduction of contact is likely to be viewed as a loss by the children and is also against the principles contained in ss 5(b) and 5(d) of the Act, which provide that a child’s relationships with their family should be “stable and ongoing”, that these relationships should be “preserved and strengthened”, and that extended family members “should be encouraged to participate in the child’s care, development, and upbringing”. Advantages of remaining in New Zealand: increased contact with father [60] If the relocation application is dismissed, the children will continue to have regular face-to-face contact with their father. This is likely to have a positive impact on the children’s lives. It is also consistent with s 5(a) of the Act, which states that children’s parents “should have the primary responsibly” for raising their children and s 5(b) which declares that “there should be continuity in arrangements” in terms of the children’s care. It is also in line with s 5(d), which focuses on the need to preserve and strengthen relationships between children and their families. [61] The children may ultimately end up having significantly more contact with their father than they currently enjoy because Mr Caldwell wishes to be more involved in the day-to-day parenting of the children and ultimately progress to an equal shared care arrangement. This could be very positive for the children and may also go some way to relieving the immense pressure Ms Caldwell is currently experiencing as the sole primary caregiver of the children. This could have positive flow-on effects for the children and may further enhance their welfare and best interests. Advantages of remaining in New Zealand: maintenance of contact with paternal family [62] If the children remain living in New Zealand they will continue to see their paternal grandfather every week while their father lives with him. Eventually the father wishes to purchase his own house. At this time the children may no longer see their grandfather every week, but it is anticipated that he will still spend time with the children, especially because he lives in the same town as them. This is likely to have a positive effect on the children in terms of their welfare and best interests. It is unknown how much time the children spend with their paternal grandmother, but any contact they currently have with her (if any) is also likely to continue. Disadvantages of remaining in New Zealand: diminished wellbeing of primary caregiver [63] Ms Caldwell is concerned that her clinical depression will have a negative impact on her parenting abilities and that she will not be able to adequately parent her children unless she is permitted to relocate with the children. Ms Caldwell’s evidence is that she is struggling to raise the children on her own because she has very little assistance in New Zealand. She receives little support from Mr Caldwell or his family and is unable to develop alternative support networks due to her limited ability to engage in social interac-

Caldwell v Caldwell [Relocation]—Judgment 219 tions outside of the home. Ms Caldwell feels trapped in New Zealand and describes being forced to stay in New Zealand as a “death sentence”. However, there is no evidence that she suffers from any suicidal tendencies. [64] There was a lack of consensus as to what degree Ms Caldwell’s mental health would have a negative impact upon the children. Mr Bowker claimed that, although Ms Caldwell does suffer from moderate to severe clinical depression, this has not impacted upon her ability to parent her children effectively and that she is still a good mother. He went on to say that her evidence about struggling as a parent could be a description of “any typical mother of several children who has a new baby in the home”. However, he acknowledged that there is a risk that if her depression worsens as a result of having to stay in New Zealand this could have a negative impact on her and the children. [65] Ms Kennedy accepted that Ms Caldwell would be unhappy if she had to remain living in New Zealand. Ms Kennedy said that Ms Caldwell’s difficulties were similar to the experiences most primary caregivers have when bringing up four young children predominately on their own. However, having moderate to severe clinical depression cannot merely be conflated with struggling to raise four children with limited support. Clinical depression is a serious illness that cannot be disregarded in this way. [66] Ms Kennedy was also optimistic that Ms Caldwell’s emotional wellbeing would improve over time as the children got older and that she would eventually be able to resume her employment as a teacher. This fails to comprehend the possibility (acknowledged by both Dr Jamieson and Mr Bowker) that Ms Caldwell’s depression may actually worsen over time, especially if she does not receive any additional practical and/or emotional support. Dr Jamieson said that the mother’s depression could be managed if she remained in New Zealand, but noted that if this were the case he “would certainly have concerns, that … a moderately severe depression would then turn into a severe depression”. If this did eventuate, Dr Jamieson acknowledged that this would have a negative impact upon the children. Mr Bowker agreed that Ms Caldwell’s “longer term wellbeing will inevitably have an impact on [the children’s] sense of security and wellbeing” and noted that the “quality of the care they receive from her will be affected by her emotional and psychological state”. Thus if the mother’s depression worsens, this could have a significantly negative impact on the children, which would clearly not be in their welfare and best interests. Disadvantages of remaining in New Zealand: reduction in contact with maternal family [67] If the children are not permitted to relocate to Western Australia with their mother they will not get the chance to develop a closer relationship with their maternal grandparents, uncle, and cousin. This would be contrary to the principles expressed in ss 5(b) and 5(d) of the Act, which encourage the involvement of children’s extended family in their lives where possible. A third option—can Mr Caldwell relocate to Western Australia? [68] At first glance there seem to be two distinct options, each with their own advantages and disadvantages in terms of the welfare and best interests of the children. If the children relocate to Australia they are likely to reap the benefits of their mother’s improved mental health and wellbeing and will also develop a closer relationship with their maternal family. However, they will miss out on regular face-to-face contact with their father and their paternal family. On the other hand, if they remain in New Zealand they will continue to enjoy regular face-to-face contact with their father and their paternal family (which may or may not increase over time), but their mother’s potentially deteriorating mental health and lack of support may have a negative impact upon them. They will also miss out on the opportunity to get to know their extended maternal family.

220  Ruth Ballantyne [69] However, there is a third possibility that needs to be considered. This option involves the whole family relocating to Western Australia, which would allow the children to have the best of both worlds: a well-supported mother and regular contact with their father. [70] To be allowed to relocate, the parent seeking relocation has to convince the court that the proposed relocation would be in the welfare and best interests of the children concerned. However, the parent opposing the relocation does not have to justify why they wish the children to remain in their current location, or how remaining is in the children’s welfare and best interests, or why they are unable to follow their children. This is unjust because the welfare and best interests of the child standard applies equally to all parents. It would be unfair to expect Ms Caldwell to put her children’s welfare and best interests above all else, to the detriment of her own psychological wellbeing and freedom of movement, if Mr Caldwell were not also expected to put his children’s welfare and best interests above all else, including his employment opportunities and freedom of movement. [71] Contradictory evidence was presented as to whether Mr Caldwell would or could follow the children to Western Australia if they relocated there with their mother. Initially it seemed likely that Mr Caldwell would follow the children to Western Australia if relocation were permitted. As Mr Bowker said in his first report in June 2009: … From the interviews it seemed to me clear that should the relocation be granted, then [Mr Caldwell] would find a way to follow the family to Western Australia as well. He seems to have work skills that are as much in demand over there as they are here; and he has the option of returning to his previous off shore work that would enable him to base himself in either country.

[72] Likewise in his second report in February 2010, Mr Bowker’s evidence was that this was “the most likely scenario” and that Mr Caldwell has “an interest in returning to sea”. Indeed, during cross-examination, Mr Bowker said that he was sure that Mr Caldwell would relocate if necessary. As Mr Bowker said: I’m actually quite sure that if the relocation is allowed, that he will find a way to relocate. He will either return to sea and both times he has expressed to me an interest in returning to sea. I am not sure but I rather suspect that it is quite a lucrative career for him and it gives him lots of time on shore as well. So there was always that option for him to return to sea and to spend time with the children and then it really doesn’t matter what part of the world they are in, because the company will simply fly him back to wherever he wants to go. So that’s certainly an option and I think that’s an option that still remains open to him.

[73] Ms Caldwell was also confident that Mr Caldwell would return to his previous job as a marine engineer off the coast of Western Australia allowing him to spend every second month with the children, as was the case for the majority of the parties’ relationship. [74] However, during cross-examination Mr Caldwell categorically stated that he had no intention of following the children to Western Australia or resuming his previous job as a marine engineer. No reason was provided for this sudden change of heart apart from Mr Caldwell’s stated desire to remain in New Zealand. This is not a child-focused reason. [75] Mr Caldwell’s evidence was that the children “should have the full involvement of both their parents which would not happen if the children go to Perth”. But the children can still have the “full involvement of both their parents” if Mr Caldwell moves to Perth. There is apparently nothing (except his stated desire to remain in New Zealand) preventing the father from relocating to Western Australia and ensuring the children can continue to enjoy regular face-to-face contact with him. Such contact is clearly in the welfare and best interests of Samuel, Angus, Paul, and Rebecca in their particular circumstances. [76] I accept Mr Bowker’s evidence that Mr Caldwell’s sudden change of heart about following his children to Western Australia is a tactical decision employed for the purposes

Caldwell v Caldwell [Relocation]—Judgment 221 of the relocation hearing. Based on the evidence before me I find it is more likely than not that Mr Caldwell will indeed follow his children to Western Australia. [77] This is not to say that this will be an appropriate or desirable possibility in all relocation cases. If Mr Caldwell had a location-specific job, or no suitable job prospects in the proposed location, or a new partner, or other children’s needs to consider, then my decision may well have been a different one. But in these particular circumstances the only thing preventing the children’s welfare and best interests from being met to the utmost degree possible is Mr Caldwell’s desire to remain living in New Zealand. Outcome [78] Relocation cases are not about who is the “best” parent, or if a parent has a “good enough” reason to relocate, or what is “best” for an individual parent. Rather, they are about the welfare and best interests of the children in question. Therefore, I am legally obliged to make a decision that is in the welfare and best interests of Samuel, Angus, Paul, and Rebecca and takes account of their views. [79] After considering all relevant factors and taking the children’s views into account, I determine that the best outcome for Samuel, Angus, Paul, and Rebecca, in their particular circumstances, is to live in Western Australia with their mother and to have regular face-toface contact with their father there. [80] To that end, Ms Caldwell and the children are permitted to relocate to Western Australia. [81] It remains open to Mr Caldwell to follow his children to Western Australia to best ensure the children’s welfare and best interests. Orders [82] The order preventing the removal of the children from New Zealand is discharged. [83] A final parenting order is made granting Ms Caldwell the day-to-day care of Samuel, Angus, Paul, and Rebecca and specifying Western Australia as their place of residence. Ms Caldwell may move to reside in Australia after 45 days from the date of this judgment. [84] Until Ms Caldwell and the children have relocated to Western Australia, Mr Caldwell shall have contact with the children twice a week on terms to be agreed between the parties. If the parties cannot agree on appropriate interim contact arrangements within five days, the matter may be set down before me by submissions on affidavit evidence filed. The matter shall be scheduled for 30 minutes and the parties may attend by teleconference. [85] After Ms Caldwell and the children have relocated to Western Australia, Mr ­Caldwell shall have contact with the children on terms to be agreed between the parties. [86] If the parties cannot agree on appropriate final contact arrangements within 21 days, the matter may be set down for further hearing before me by submissions on affidavit evidence filed. The matter shall be scheduled for one hour and the parties may attend by teleconference. [87] Ms Caldwell will arrange for copies of the children’s school/preschool reports and medical information to be provided to Mr Caldwell directly from the children’s new schools/preschools and GP. [88] Mr Caldwell is to attend the Parenting Through Separation Programme as soon as possible and report to the Family Court Co-ordinator when this is completed. Addendum If this decision is published, the parties may be referred to by the fictitious names Linda Caldwell and Geoff Caldwell and the children as Samuel, Angus, Paul, and Rebecca Caldwell.

222 

Relationship Property

224 

13 Commentary on V v V A Fair Share of the Pavlova? VIVIENNE CRAWSHAW AND KHYATI SHAH

[Family law as a] category of law has determined the structure of the family, and it is the family which constitutes the major site of women’s oppression.1

Introduction In March 2000, Mr V and Ms V separated after 21 years of marriage. During their ­relationship, the parties carried out their domestic and paid work along traditional gender lines. Ms V was a qualified primary and secondary school teacher who at separation was sporadically employed as a relief teacher. She ran the household, provided support to Mr V and was the primary caregiver to their four children. On the other hand, Mr V was free to focus on his business and was less involved in the household duties than was Ms V. That division of functions in the marriage meant that Ms V’s teaching career stagnated and Mr V’s career flourished. Their widely disparate earning potential at separation was testament to this. Perhaps unsurprisingly, Mr V and Ms V’s economic trajectories upon separation were worlds apart. At separation, Mr V earned $140,000 a year, while Ms V became reliant on a Domestic Purposes Benefit.2 Furthermore, Ms V’s employment prospects were restricted due to an over-supply of primary school teachers and limited secondary schools in the vicinity. This problem was exacerbated by a condition attaching to the interim custody arrangement in relation to their youngest child requiring her to reside close to Mr V. The pool of property to be divided totalled $700,000. In accordance with the statutory regime, this would normally be divided equally ($350,000 each). However, at the hearing in October 2002, Ms V argued that she should be compensated for the post-separation economic disparity between her and her ex-husband, using the newly introduced s 15 of

1 

N Naffine, Law and the Sexes: Explorations in Feminist Jurisprudence (Sydney, Allen and Unwin, 1990) 14. Social Security Act 1984 (NZ), s 27B, now replaced by a ‘Sole Parent Support Payment’ under SSA 1984, s 20F. A social welfare payment primarily made out to single parents with dependent children. 2 

226  Vivienne Crawshaw and Khyati Shah the Property (Relationships) Act 1976 (NZ).3 In the original decision, although successful in her s 15 claim, Ms V received a mere $38,660 in addition to her half share of the relationship property.

Background Prior to the introduction of s 15, division of relationship property in New Zealand was on a strict equal sharing basis, with little leeway allowed for any deviation from that rule. Equal sharing of property was shepherded in by the Matrimonial Property Act 1976, arguably reflecting the liberal feminist views of the time, which focused on achieving formal equality between spouses.4 In Z v Z, an important case which preceded s 15, the notion of equal sharing was described as ‘one facet of the wider legislative purpose of ensuring the equal status of women in society’.5 However, the equal sharing regime had its significant critics.6 Nevertheless, despite the hesitations of some of the then (male) leaders of the legal profession, the 50/50 division was there to stay. That equal sharing has carried through to the present time and the general scheme of property division, which provides for a clear-cut system for classification. ­Division has been described as being ‘largely rule-based—or at least rule-gated’.7 Z v Z was at least partly responsible for exposing the failure of a formally ‘equal’ division of property to deliver just results. There, the wife had argued that the husband’s earning capacity should be characterised as ‘property’ and therefore divided between the parties. Although the Court of Appeal concluded that the income earning capacity of the husband did not constitute a property interest, the Court acknowledged the inherent injustice in that outcome:8 [W]hile [the Act] achieves formal equality between the spouses in that the conventional items of property are divided equally, it does not achieve actual equality when the husband is left with the ability to earn a significant income and the wife is left with little or no ability to earn a living and possibly little or nothing in the way of material assets from the marriage to assist her. The relative hardship is likely to be exacerbated when the wife, as is likely, obtains custody of the children or is left to look after them by default. Such an outcome cannot be easily reconciled with the objectives of equality and justice underlying the Act.

3 Property (Relationships) Act 1976, s 15 was introduced in the overhaul of the Matrimonial Property Act 1976 by the Property (Relationships) Amendment Act 2001, which enacted the new legislation, coming into force in 2002 (despite being dated 1976). 4  K Ayers, P Mahony and N Peart, Brookers Family Law: Family Property (Wellington, Thomson Brookers, 2008) PRintro.01. 5  Z v Z (No 2) [1997] 2 NZLR 258 (CA), 267, citing Reid v Reid [1979] 1 NZLR 572 (CA), 580. 6  Eg, BD Inglis QC (as he then was) thought that equal sharing would lead to ‘ludicrously unjust practical results’: V Crawshaw, ‘Section 15—a Satellite Overview’ (2009) 6 New Zealand Family Law Journal 155, 156. 7  J Miles, ‘Financial Provision and Property Division on Relationship Breakdown: a Theoretical Analysis of the New Zealand Legislation’ (2004) 21 New Zealand Universities Law Review 268, 269. 8  Z v Z (n 5) 275.

V v V—Commentary 227 Parliament was forced to turn its mind to the injustices highlighted in Z v Z and in 2001, s 15 was an attempt to redress that imbalance. The Working Party whose report heralded the advent of the renamed Property (Relationships) Act 19769 recognised the nub of the issue.10 As Hammond J explained some years later:11 [218] … [W]hat may be needed (and the new legislation recognises) is compensation for differences created by the very institution of marriage. This is where the notion of substantive—or real— equality­comes so strongly into play.

Section 15 was intended to address inequities that can arise from formal equal division by allowing a compensatory payment to be made by one spouse to another (albeit the payment must come from the higher earning party’s share of relationship property),12 thus deviating from the strict equal sharing regime. The rationale behind s 15 was to achieve the ‘equality of result’13 that equal division simpliciter could not realise. Whilst avoiding the classification of income as ‘property’, the section recognised that ‘the most crucial asset in many relationships and marriages is what Baroness Hale in Miller v Miller14 described as “the breadwinner’s unimpaired and unimpeded earning capacity”’.15 Section 15 was not universally heralded as an answer to all prayers, being described as ‘awkwardly grafted’ onto the Act.16 Indeed, it sat apart from other sections which concentrate on classification and division. V v V came at a time when the courts had not yet truly begun to wrestle with the way they would approach such issues as liability to make the award, the exercise of discretion to award compensation and how the quantum of compensation should be determined, as well as the general applicability of the section.17 Those issues would prove in some cases to dilute the application of the section18 and in others, to reject its application entirely.19

9 

PRAA 2001, s 4. Report of the Working Group on Matrimonial Property and Family Protection, 1988 (Wellington, Department of Justice, 1998). 11  M v B [2006] 3 NZLR 660 (CA). See also M Henaghan, ‘Exceptions to 50/50 Sharing of Relationship Property’ in M Briggs et al (eds), Modern Family Finances (Cambridge, Intersentia, forthcoming). 12  In rare cases, a compensatory order may be made from the higher earner’s separate property, but only where the lower earner has contributed to an increase in value of the other’s separate property (s 15A of the Act). 13 M Henaghan and N Peart, ‘Relationship Property Applications in the New Zealand Court of Appeal 1958–2008: the Elusiveness of Equality’ in Bigwood R (ed), The Permanent New Zealand Court of Appeal: Essays on the First 50 Years (Oxford, Hart Publishing 2009) 22. 14  Miller v Miller (2006) UKHL 24, [2006] AC 618 (HL). 15  Henaghan and Peart, ‘Relationship Property Applications’ (n 13) 1. 16  B Atkin, ‘Economic Disparity: How Did We End Up With It? Has It Been Worth It?’ (2007) 5 New Zealand Family Law Journal 299, 302. 17  V v V [2002] NZFLR 1105 (FC). 18  By the miserable calculation of quantum. See, eg, JES v JBC [2007] NZFLR 472, H v H [2007] NZFLR 711. 19 See, eg, PEL v FFB [2012] NZFC 9534 where the court found the husband’s position post-separation was worse than the wife, partly due to his re-partnering and the advent of a new baby, T v C (FC Wellington FAM-2007-032-453, 9 June 2009) where the wife’s career change was found to be a disqualifying feature, and A v A (FC North Shore FAM-2007-044-1462, 21 June 2010) where the Court did not accept that the wife’s work in the plastering industry was significantly impacted by her career break to raise the children and support her partner, to name a few. 10 

228  Vivienne Crawshaw and Khyati Shah

The Original Decision V v V was one of the first decisions in which s 15 was applied.20 The facts in V v V gave rise to several issues about the appropriate interpretation of the new section. The main legal issues were: (a) Whether the income and living standards of Mr V were likely to be significantly higher than those of Ms V—‘significant disparity’. (b) Whether the economic disparity was caused by the effects of the division of functions within the relationship—‘causation’. (c) Whether and how the judge should exercise his or her discretion to award compensation. (d) The calculation of the quantum of compensation. Clearing the threshold requirements of s 15 with ease, Ms V successfully obtained compensation for post-separation economic disparity in the sum of $38,660 (from a total pool of $700,000), with the result that the division between the parties was just over 55% in favour of Ms V. On the issue of quantum, Judge Adams adopted a formula for calculation suggested by academics Bill Atkin and Wendy Parker.21 This had the effect of undermining the impact of the section as the resulting sum of compensation was whittled down to the extent it became almost miniscule. Following the Atkin and Parker formula, the Court calculated the income Ms V might have received had she not had a career break, deducted from that sum her actual earnings, also net of tax, then deducted for contingencies. A further deduction (by half) was made, on the following rationale ‘That is because a payment of $x from Mr V to Mrs V will produce a disparity of $x between them: he will be poorer by $x; she will be richer by $x)’.22 Atkin and Parker had also concluded that ‘the disparity ought to be treated like an item of relationship property.’23 A number of cases subsequently used the V v V model for calculating quantum, including the contingency discount and the automatic halving.24 Further, in Speller v Chong, V v V was cited as authority for the proposition that s 15 was not a ‘licence for judicial reformism’.25 Thus, V v V became in some quarters something of a Pied Piper in the call for the use of the Atkin and Parker formula and the axiomatic halving of awards.

20  The only two earlier cases were de Malmanche v de Malmanche [2002] 2 NZLR 838 (HC) and Fischbach v Bonnar [2002] NZFLR 705 (FC). 21  B Atkin and W Parker, Relationship Property in New Zealand (Wellington, Butterworths, 2001) 106. 22  V v V (n 17) [41]. 23  Referred to subsequently in X v X [Economic disparity] [2009] NZCA 399, [2010] 1 NZLR 601 [124]. 24  In particular, the halving of compensation awards was referred to (with cautious approval) by Robertson J in X v X (n 23). More significantly the majority in X v X adopted the methodology used in the Family Court (X v X [Quantum] [2008] NZFLR 512 (FC) [65], per Clarkson FCJ) which had in turn followed the model used by Judge Adams in V v V. So too had Hansen J referred with approval to the first decision in his consideration of the question of halving in the first X v X appeal. The rationale for halving was also adopted in E v E [2005] NZFLR 313 (FC) [126], but not in P v P [2005] NZFLR 689 (HC) [73] and nor was it in M v B (n 11) [147] where it was considered that a jury assessment was a preferable approach to calculating quantum than a ‘rote application of a formula’. 25  Speller v Chong [2003] NZFLR 385 (FC) [27].

V v V—Commentary 229 More recently however, the rigidity of that formulaic approach to the calculation of quantum has been challenged. After all, there is no legislative mandate to do so; the section itself provides no formula or guidance, simply prescribing that: (3) If this section applies, the court, if it considers it just, may, for the purpose of compensating party A,— (a) order party B to pay party A a sum of money out of party B’s relationship property: (b) order party B to transfer to party A any other property out of party B’s relationship property.

Whilst most decisions following V v V attempted to cling to the safety of the Atkin and Parker formula (perhaps with the rationale that this more precise attempt at calculation might be more predictable and thus assist in the settlement of other cases), that approach was dramatically departed from in Jack v Jack. There Goddard J upheld the Family Court decision to simply award the wife 70% of the property (instead of mathematically calculating her loss),26 finding that the Judge was ‘correct to adopt a sensible jury assessment role’.27 In that case because the husband’s income was extraordinarily high, but the pool of property comparatively modest, the award in fact comprised only 30% of the husband’s annual income.28 The High Court was satisfied that it was therefore well within range and saw no reason to halve the award. In rejecting the application of the usual formula, Goddard J referred to the minority decision in X v X:29 The observations of Robertson J in X v X are apposite. His Honour emphasised that s 15 should not be “locked into any particular prescription” because “parties’ circumstances will vary considerably” and s 15 awards are “necessarily a matter of impression and rote applications of formula will not be appropriate”.

Following Jack v Jack, s 15 was again revisited by the Court of Appeal in Scott v ­Williams.30 Although the Court increased the quantum of the s 15 award for the wife, from that reduced by the High Court,31 it made no attempt to follow the Jack v Jack approach to the calculation of quantum, instead utilising the traditional Atkin and Parker formula. It rejected any notion that the percentage of the property pool was a particularly relevant point, stating that it would depend on the facts of each case.32 In approving the formula, the Court of Appeal refuted the argument that it was ‘mechanistic’, instead finding that: ‘[t]he X v X formula aligns with the overall purpose of s 15, which is to compensate for disparity caused by the division of functions. The purpose of s 15 is not to remove the disparity altogether’.33 It is to be noted that in addition to the use of the formula, the Court adopted a hybrid approach of using the formula as a starting point, then taking a robust approach,

26 

Jack v Jack [2014] NZHC 1495, [2014] BCL 329. ibid [81]. 28  Between 1.6–1.8m: ibid [70]. 29  Jack (n 26) [63] citing X v X (n 23). 30  Scott v Williams [2016] NZFLR 499 (CA). 31  Williams v Scott [2014] NZHC 3385. In the High Court the s 15 sum was reduced to $280,000 but increased in the Court of Appeal to $470,000. 32  Scott v Williams (n 30) [112]. 33  ibid [87]. 27 

230  Vivienne Crawshaw and Khyati Shah and in that case, reducing the award further, from a period of 14 to 10 years ($570,000 to $470,000).34 Most revealing was the Court of Appeal’s overall view of the section: [97] First, a s 15 award is not enduring. It is compensatory, and the extent of compensation is what is just in the circumstances of the case. It is not there to simply split the parties’ future earning capacities—which is not relationship property in any event. It is not there to equivalise the income stream of two persons who almost certainly were bound to have had different income earning capacities had they not married in the first place. Or had they both remained in full time employment and divided marital responsibilities evenly all along. The relevant period of compensation will be a matter of impression, but as Robertson J said in X v X: “The period of time over which the compensating payment is to be made will vary, but it should not be assumed that it will continue for the potential working life of either party”.

As at the date of writing, leave has been granted to appeal Scott v Williams to the Supreme Court on the following ground relevant to s 15: ‘Was the amount awarded to the applicant under s 15 of the Property (Relationships) Act 1976 correct?’ but no decision has yet been issued. However, the Supreme Court has also permitted a broader scope to the appeal, ­noting: ‘We do not see the fact that the Court of Appeal refused leave to appeal on the ­halving and contingency discount issues in relation to s 15 of the Property (Relationships) Act 1976 as precluding this Court from addressing those points’.35 The decision is awaited in the hope that it may regulate or at least elucidate the approach to the calculation of quantum, possibly moving from the trail begun by Atkin and Parker, and solidified in V v V. Whether or not the Supreme Court decides to grapple with the judicial approach to the section, it may end up being clarified by Parliament. The New Zealand Law Commission is now tasked with undertaking a thorough review of the Property (Relationships) Act.36 The review is to include ‘The ability to make adjustments to take account of economic disparity between spouses and partners, and other departures from equal sharing as contemplated by the Act’.37 Whether the judiciary or Parliament tackles the issues, there is certainly a call for a fresh look at the approach to the calculation of quantum in s 15 awards.38 In the quest for certainty in calculating quantum the very purpose of the section may have become forgotten. The feminist judgment has attempted a resuscitation of the rationale for the section and has moved gingerly from the comforting blanket of the formula.

The Feminist Judgment A feature that marks the feminist judgment as unique in this collection is that John Adams was the judge in the original case and is also the author of the feminist rewrite, now taking an explicitly feminist approach to the same set of facts. Many aspects of the feminist judgment are noteworthy, not least the significantly increased quantum of

34 

ibid [93]. Scott v Williams [2016] NZSC 149 [3]. 36  New Zealand Law Commission, Review of the Property (Relationships) Act 1976, start date 24 May 2016. 37  ibid; www.lawcom.govt.nz/our-projects/review-property-relationships-act-1976. 38  The liability factors (cf quantum issues) are now reasonably settled. 35 

V v V—Commentary 231 c­ ompensation awarded to Ms V ($120,000 rather than $38,660). In contrast with his original judgment, in his feminist judgment Judge Adams begins with a solid contextualisation of Ms V’s ‘micro socio-political reality’.39 He explicitly recognises the gendered nature of post-separation economic disparity and the antidotal function of s 15. Particularly remarkable in the feminist judgment is what Katherine Bartlett has termed ‘feminist practical reasoning’ that is, reasoning from context as opposed to in the abstract, so as to produce fairer outcomes.40 The Judge consistently draws attention to Ms V’s lived reality to better understand and respond to it. For example, he discusses the impact of the interim custody of their child on her employability. The same method is applied to positioning s 15 in its wider socio-legal context, so that the potential for redress for post-separation economic disparity between the parties can be fully and fairly utilised. In so doing, Judge Adams develops two key interrelated insights which later come to bear on his consideration of the amount of compensation to be awarded under s 15. Firstly, he considers the impact of the interim parenting order for the youngest child on the financial wellbeing of Ms V. He observes the economic injustices imposed on Ms V through the custody order—ie the restraint on her relocation is to the detriment of her employment opportunities, further exacerbating the post-separation economic disparities between the parties.41 By engaging with the facts of the case in this way, the feminist Judge is better placed to respond adequately to Ms V’s socio-political reality, to the extent that an order under s 15 permits. The economic impact of the restrictions imposed on Ms V because of the custody order lead in part to an increase in the overall compensation sum from that awarded in the original decision. Secondly, through the mapping of the Act’s legislative history, its purpose and societal currents leading to the enactment of s 15, the feminist judgment points to the premise that typically ‘women, not men, suffer economic disadvantage after the relationship ends … parliament has determined to adjust this unfairness’.42 Judge Adams draws a distinction between what is ‘equal’ and what is ‘just’ mirroring the distinction drawn in feminist literature between formal equality (equality of treatment) and substantive equality (equality of outcome).43 The term ‘equal sharing’ used in the Property (Relationships) Act is taken to mean 50:50 sharing,44 and is an example of formal equality. Adams draws on the idea of ‘just’ in s 15 to bring about substantive equality. The role of the judge in a s 15 case is captured especially well in the metaphor of a parent preparing school lunches for two children—the lunches may vary in composition but the parent may still regard it as treating the two children equally, in light of their individual needs.45 The characterisation of the post-separation economic disparity as an unfairness with a distinct gendered aspect, of the function of s 15 as mediating that unfairness, and of

39  R Collier, Men, Law and Gender: Essays on the ‘Man’ of Law (Milton Park, Routledge, 2010) 148. Collier describes the concept of ‘micro socio-political reality’ as an individual’s lived experience (reality) influenced by social attitudes and government policies. 40  KT Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829. 41  Judge Adams, this collection, [8]. 42  ibid [29]. 43  J Pilcher and I Whelehan, Fifty Key Concepts in Gender Studies (London, Sage Publications, 2004). 44  PRA 1976, s 11. 45  Adams (n 41) [22].

232  Vivienne Crawshaw and Khyati Shah the role of the judge in achieving substantive equality are an exercise in contextualisation or feminist practical reasoning. This reasoning is highly significant because judges hold a ­privileged epistemic position—that is, the way in which judges describe non-legal issues and apply their judicial authority to those issues, disqualifies other knowledge claims that may exist on the subject.46 Thus, the method of contextualisation is not only crucial to yielding individualised and just results but it enables previously excluded perspectives and experiences to be included in the collective legal knowledge, available to be utilised by future judges, lawyers and litigants.47 The feminist judgment approaches the question of the exercise of overall discretion included in s 15, alert to the implications of the judicial power to thwart or to give full effect to the section. In considering the residual discretion afforded to the Court, Judge Adams directs his attention to the overall rationale for the section, and the constraints attending to that exercise, which require an appreciation of the injustices that the section is designed to address. The feminist judgment sees no room for avoiding Parliament’s intention in addressing inequality and injustices in this step in the analysis of the section. Perhaps most significantly in terms of the actual award achieved for Ms V, the feminist judgment approaches the principles behind the calculation of the quantum of the award in a less rigid manner (an ‘unfussy award’),48 thus ensuring that the objects of s 15 are not frustrated by judicial paring-down of the size of the award. In the feminist judgment, Judge Adams recognises the remedial nature of the compensation sum. He talks of ‘a counterbalance, a requital’.49 In doing so, the feminist judgment rejects the folly of a solely arithmetical approach (not required anyway within the statute) which could have the result of so diluting the award that the purpose of the section is frustrated. Halving is not mentioned in the statute, let alone required. Judge Adams nevertheless requires that the award be just to Mr V, as well as Ms V. In doing so, he pays heed to the principles in the Property (Relationships) Act.50 The see-saw is used as a metaphor to conceptualise the consideration about whether or not to halve the award and to explain the basis for doing so: ‘This is because, where one party pays a sum out of that party’s share in the property, the resultant financial disparity between them is double the payment, like the shift of relative positions on a see-saw’.51 However, the halving question is vexed. As Atkin has pointed out, the calculation of compensation in civil claims does not require an analysis of the paying party’s resources (though enforcement would be problematic if the defendant were impecunious).52 ­Nevertheless, in the feminist judgment Judge Adams goes on to postulate that halving will generally achieve justice between the parties. The Judge divides the award into two tranches, the first being the first three years following separation; the second the period following six months after the hearing and up to the date where the disparity ends. The first tranche of the award is 46 

C Smart, Feminism and the Power of Law (London, Routledge, 1989) 17. Hunter, ‘An Account of Feminist Judging’ in R Hunter, C McGlynn and E Rackley (eds), Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing, 2010) 38. 48  Adams (n 41) [50]. 49  ibid [41]. 50  PRA 1976, s 1N and in particular s 1N(c) ‘the principle that a just division of relationship property has regard to the economic advantages or disadvantages to the spouses or partners arising from their marriage, civil union, or de facto relationship or from the ending of their marriage, civil union, or de facto relationship’. 51  Adams (n 41) [46]. 52  Atkin, ‘Economic Disparity’ (n 16) 302. 47 R

V v V—Commentary 233 not halved because Judge Adams considers the hampering of Ms V’s earning capacity postseparation is entirely due to Mr V’s rigidity in the custody requirements he imposed on Ms V, rather than attributable to the relationship itself. However, he halves the second tranche of the award as he sees that part of the award as largely being a debt of the couple, not just Mr V. Despite that, the overall result of the revised, more broad-brush approach to the quantum is to significantly increase the sum awarded to Ms V (a percentage increase from 55% to 66%). It is interesting to note that in calculating the quantum of the claim, the facts of V v V readily lent themselves to a neat application of the Atkin and Parker method of calculation as Ms V’s ‘but for’ income (the income she might otherwise have earned had she not suffered the effects of the division of functions in the marriage) was easily determined from the teaching scale. This avoided the need for the Court in either judgment having to postulate what her earnings might have been had Ms V begun in a different career, or to confront the even more difficult questions posed had she had no career or work history at all.53 Reading both judgments might lead the reader to conclude that the only potential way to quantify the compensatory award was to calculate Ms V’s personal loss in terms of her diminished earning capacity at separation. However, s 15 leaves open the potential to claim based on an enhancement of the other party’s position. In the first judgment, although Judge Adams acknowledged that Ms V’s responsibility for domestic tasks led to Mr V’s freedom to focus untrammelled on his career, that factor did not materialise into the quantum calculation. In the feminist judgment, Judge Adams recognises Mr V’s enhanced and superior economic position at a deeper level, noting Ms V’s sustenance of his ‘economic positioning’.54 The feminist judgment genuflects to the idea of the enhancement of the ­husband’s earning capacity,55 however, Judge Adams expresses apprehension about the concept and makes no attempt to calculate the extent of the impact of that enhancement on Mr V. For example, would Mr V have reached the giddy heights of his career, had he been hindered by the domestic demands that instead constrained Ms V? Instead, the calculation of quantum is solely focused on Ms V’s loss. Perhaps the case for enhancement was not argued before the Court, or the Court lacked an evidential foundation for an enhancement claim, or even the feminist judgment simply avoids it as too dangerous in its prospective nature? Either way, it is a missed opportunity that the feminist judgment merely touches upon but does not explore.56 The feminist judgment appreciates the inequality of outcome for Ms V, absent s 15. But the real virtue of this judgment, is that far from being further demeaned by the Court’s assessment of her claim she receives financial acknowledgment in the more robust and broad-brush approach to the calculation of the quantum of her claim. 53  The fact that a claimant may have begun the relationship without an established career has since V v V not been found to be disentitling of itself. See, eg, RMAFH v LTS [2012] NZFC 7543, where Judge Ryan held that there was a causal nexus between the economic disparity between the parties and the division of functions in the marriage, despite her having no career when the relationship began. 54  Adams (n 41) [54]. 55  ibid [31]. 56 In Jack (n 26) per Goddard J, the primary basis for the wife’s s 15 claim was in her claim that she had enhanced the husband’s significant earning capacity. Instead of the claim being assessed on a strictly arithmetical basis, the Family Court award, granting her 70% of the relationship property was upheld. There, Goddard J appreciated that Mrs Jack’s role in her domestic support of Mr Jack was significant in terms of the impact on his earning capacity: ‘It is not axiomatic that Mr Jack would have achieved the degree of success that he has without the support Mrs Jack has given him while he built his career and throughout the lengthy period of their 28 year marriage’.

VvV

Family Court  Porirua 19-21 August 2002; 8 October 2002 Judge Adams

FP 169/00

Ms Gush for the applicant Mr Letts for the respondent JUDGE J G ADAMS. Compensation for post-separation economic disparity: a fresh legislative tool [1] Ms V is a qualified primary, secondary and music teacher but she has spent the last two decades running the home, supporting Mr V and attending to most childcare duties. Her earning potential has shrunk because she has lost work seniority. Moreover, her ­ongoing childcare duties restrict her employment opportunities. Mr V earns $140,000 a year while she receives a domestic purposes benefit. [2] Married 21 years, they have four children. The oldest is independent; the next two (19 and 17 years) are at university and boarding school. The youngest (10 years) is in their shared care albeit based with Ms V, spending weekend and mid-week occasions with Mr V. [3] Had this case been heard last year, Ms V and Mr V would have each taken half of their $700,000 of relationship property. But now a new provision allows me to compensate for post-separation economic disparity. The new provision, s 15 of the Property (Relationships) Act 1976, introduced by the Property (Relationships) Amendment Act 2001, has thresholds but, once an applicant clears those, is silent on how I should calculate an award. The only two reported judgments provide little guidance on this important point. [4] Section 15 provides: Court may make orders to redress economic disparities 15 Court may award lump sum payments or order transfer of property (1) This section applies if, on the division of relationship property, the Court is satisfied that, after the marriage or de facto relationship ends, the income and living standards of one spouse or de facto partner (party B) are likely to be significantly higher than the other spouse or de facto partner (party A) because of the effects of the division of functions within the marriage or de facto relationship while the parties were living together. (2) In determining whether or not to make an order under this section, the court may have regard to— (a) the likely earning capacity of each spouse or de facto partner:

V v V—Judgment 235 (b) the responsibilities of each spouse or partner for the ongoing daily care of any minor or dependent children of the marriage or, as the case requires, any minor or dependent children of the de facto relationship: (c) any other relevant circumstances. (3) If this section applies, the court, if it considers it just, may, for the purpose of compensating party A,— (a) order party B to pay party A a sum of money out of party B’s relationship property: (b) order party B to transfer to party A any other property out of party B’s relationship property. (4) This section overrides sections 11 to 14A.

[5]

In this case, the issues are: • • • •

Are the income and living standards of Mr V likely to be significantly higher than the income and living standards of Ms V? Was that disparity caused by the effects of the division of functions within the relationship? Should I exercise my discretion to award compensation? If so, how should I assess the compensatory award?

Are the income and living standards of Mr V likely to be significantly higher than the income and living standards of Ms V? [6] Because s 15 is new, I wish to be explicit about the criteria I am applying. It is not settled law whether the two s 15 components, “income” and “living standards”, require separate comparisons or whether the test is a “rolled-up” concept addressing overall “­significant” economic disparity. The recent High Court judgment in de Malmanche v de ­Malmanche [2002] 2 NZLR 838 does not clarify this when it observes at para [151]: “­Simply put, party B’s income and living standards must be likely to be significantly higher than party A’s.” Although there may be a case where broad assessment of combined income and living standards are significantly higher even though one party’s income is not significantly higher than that of the other, whether this statutory construction creates two tests or one is not material to the outcome of this case. [7] Mr V, aged 52 and in reasonable health, is self-employed, earning $140,000 per year. His business (worth $135,000) is relationship property. He wants to buy Ms V out of the house which, on an equal division, would require him to borrow about $220,000. Absent any s 15 award, he will have capital assets worth $350,000 from the relationship property pool. He is likely to provide some financial assistance to the second child, a university student. The third child is in boarding school, nearing the end of secondary school. He pays child support of $833 per month for the youngest child. He can meet his obligations without difficulty. [8] Two and a half years after separation, Ms V’s life is still dominated by her duties to the youngest child. Aged 49 and in good health, she relies on a domestic purposes benefit because teaching work is not available near her current residence. She is restricted to residing in this location by a condition on her interim care order for the youngest child which requires her to reside near Mr V to facilitate mid-week contact between father and child. She has had a little relieving work. Suitable ongoing work would probably be available one hour’s journey away. There, I find she could earn $37,000 per year, rising over five years to $55,000. Having day to day care of the child carries a high economic cost to her. Section 15 is, of course, about redressing economic injustice. [9] Understandably, given her straitened circumstances, Ms V has spent some capital since separation. On an equal division, she will have enough to buy a home and invest about $50,000. If she obtains work, she will at best have an income about one-quarter to

236  John Adams one-third of Mr V’s. The older children, aligned with their father since separation, will look to him for financial assistance. His capital position will increase at a rate well above that available to Ms V. [10] I find that Mr V will not only have a significantly higher income than Ms V but that he will also enjoy significantly higher living standards than she can command. Was that disparity caused by the effects of the division of functions within the relationship? [11] Ms and Mr V divided their functions along traditional lines. She forewent her career as a teacher so she could support Mr V and attend to domestic and child-related activities. As a direct consequence, she lost seniority which attracts higher pay. That she was not in full-time teaching at the end of the relationship is itself a consequence of their division of relationship functions. Mr V continued his career at the expense of her tending to their children and attending to most domestic duties. His involvement with the children cost his career nothing. [12] In Ms V’s current locality there is an over-supply of primary teachers and a limited number of secondary schools. The current curb on Ms V’s location affects her ability to obtain suitable employment. That curb flows directly from her ongoing function as primary caregiver of their youngest child. [13] Ms V experiences ongoing economic disadvantage caused by foregoing career in order to attend to domestic and child-related activities. The post-separation disparity in income and living standards is caused by the effects of the division of functions within the relationship. Should I exercise my discretion to award compensation? [14] To exercise my discretion on the correct principle, I need to understand the purpose of the new provision: s 5 Interpretation Act 1999. Text and context must be appreciated. Historical context, both social and legislative, is relevant in order to identify and give effect to its purpose. Forty years of developing legislative approaches [15] In New Zealand, Parliament has been grappling for forty years with how to divide property justly after a relationship ends. The discretionary, contributions-based Matrimonial Property Act 1963 remedy soon proved not fit for purpose. This was not the fault of the statute, a short, simple enactment. Judicial application of its unfettered discretion operated meanly for wives. In those days, women claimants were obliged, in affidavits, to list the fruit they had bottled and the preserves they had produced annually, in order to obtain perhaps a one-third share in the house—and no share in the business which was treated as the sole creation of the husband. [16] In similar jurisdictions such as the United Kingdom and Australia, these matters are still dealt with under broad discretionary legislation. In New Zealand, male-centric, financial-contribution imperatives skewed application of the broad discretion. Of the ­substitution of the Property (Relationships) Act 1976 for the 1963 model, in the recent House of Lords case of White v White [2001] 1 AC 596, Lord Cooke observed at 613: “One of the reasons that I think led the New Zealand Parliament into so much detail was disappointment with the performance of the courts in exercising jurisdiction under previous more generally-expressed legislation. In particular it was thought that too often the non-monetary contributions of a wife and mother were undervalued.”

[17] Because of that mismatch between Parliamentary intention and judicial performance, the 1963 Act lasted only 13 years. Its 1976 successor prescribed a tight, detailed

V v V—Judgment 237 code. Its dominant principle entrenched equal sharing (half each) of the home and domestic property, and a rebuttable presumption for equal sharing of other relationship property such as business assets and investments. [18] Twenty-five years further on, the Property (Relationships) Amendment Act 2001 introduced major adjustments. Partners in de facto relationships of three years’ standing now qualify for property sharing without distinction from those who are married. The strong presumption of equal sharing now applies to all relationship property. But, in s 15, Parliament modified the general legislative thrust to equal sharing, acknowledging that equal division will not always produce a just outcome. Contributions are equal; division is just [19] The Property (Relationships) Act 1976 uses two terms that are important in the s 15 context. Those terms are equal and just. To emphasise their uses, I italicise them in the next three paragraphs. [20] In s 1M(b), a purpose of the Act is “to recognise the equal contribution of both spouses …”; in s 1M(c), “to provide for a just division of the relationship property …”. ­Section 1C(3) observes: “[i]n general, the couple’s property is to be divided equally between the couple.” [21] And s 1N states: The following principles are to guide the achievement of the purpose of this Act: (a) the principle that men and women have equal status, and their equality should be maintained and enhanced: (b) the principle that all forms of contribution to the … [relationship] … p­ artnership, are treated as equal: (c) the principle that a just division of relationship property has regard to the economic advantages or disadvantages to the spouses or partners arising from their … relationship or from the ending of their … relationship:

[22] The Act uses the terms equal and equally in two different ways. A simple metaphor may help me illustrate the statutory language. Imagine a parent packing lunches for two children. The lunches may differ in bulk or composition but the parent might claim the children are treated equally. In such contexts, equal denotes a sense of equivalence or adequacy. In s 1M(b), and s 1N(a) and (b), equal can be read in this manner, but equally in s 1C(3) means formal equality where each part is identical in amount, neither less nor greater than the object of comparison. The Act deems spouses and partners to be of equal status, a status that is not only to be maintained but enhanced. Contributions to the ­partnership are described as equal albeit different in kind. Despite the bias towards formally equal division in s 1C(3), the ultimate test for division in ss 1M(c) and 1N(c) is what is just. Contributions are equal; division should be just. In ss 1N(c) and 15, this reoriented Act acknowledges a just division should adjust for ongoing economic disparity caused by the economic advantages or disadvantages arising from the relationship or its ending. Let us substitute a judge for that parent. As a metaphor for this Act, the lunches must be composed justly. Individual attention is given to each participant. Where s 15 fully applies, just division of the available property will require differences of amount. [23] It can thus be seen that the principled aims for division of property after the end of an intimate relationship have shifted. Under the 1963 Act, adjustments addressed the perceived needs of a deserving spouse. Those moral views have long since yielded to the no-fault approach; de facto relationships qualify alongside formal marriage; and partners claim their portions of relationship property as of right. In some circumstances, especially

238  John Adams where there are dependent children, a clean break may not be possible; the sale of the home may need to be delayed. But generally, the business of the Act is to divide property and thereby enable former partners to get on with their lives. [24] Apart from unusual circumstances such as misconduct under s 18A, courts resist reviewing the detail of relationships longer than three years’ duration. The no-fault legislative culture turns a deaf ear to complaints raised post-separation. When courts review the particular domestic arrangements that parties have made, those arrangements, however i­ diosyncratic, are generally treated as arrangements that produced equal contributions to the partnership. Since 1976, a clean break has been regarded as desirable. Generally, what is important is to identify and value the relationship property at separation and court hearing. [25] Section 15 requires a current assessment of likely future disparity caused by division of functions in the relationship. It would be a mistake to treat s15 as a foreign implant in a statute formerly dominated (as it was) by a theme of formally equal division. The Act maintains its stance that although contributions are treated as amounting to the same weight, the criterion for division is what is just. The Act is still a code. Section 15 is a present part of its organic structure, a tool for justice in applicable circumstances. [26] The Act is concerned with property rights and property division. Maintenance and child support are the subjects of other statutes. Section 15 is not about maintenance. Although it is a forward-looking provision, it is situated within the Act because it is about just division of property. What is the purpose of compensation for economic disparity? [27] Partners organise their relationships in myriad ways, whether by explicit agreement or tacit behaviour. Division of functions may change from time to time during a relationship. Paid employment and childcare are only two features among many. The care of an aged or infirm relative, periods of unemployment, illness of either partner, business ups and downs, readiness by one party to travel frequently without the other for business purposes, and social support: these and many others are often encountered. Another common pattern in which economic disadvantage can occur is when one partner trails behind the other to support that other partner’s career. [28] Despite its gender-neutral terms, s 15 addresses a concern largely grounded in ­gendered experience. Section 15 can produce relief for male applicants but it will more often adjust for overall justice towards women applicants. The common paradigm to which s 15 speaks is where one partner has sacrificed career advancement for children while the other advances their own career. By separation, one partner’s ongoing prospects have been whittled down while the other’s prospects are undiminished by any effect flowing from their relationship arrangements. Without making too much of it, I note that s 15(2) orders firstly the likely earning capacity of each party, and secondly childcare responsibilities, before listing other relevant circumstances. The new section seems to hold the ­economically disadvantaged and child-caring partner most closely in mind. Mostly that is the woman who is a mother. [29] The common trend is that women, not men, suffer economic disadvantage after the relationship ends. Mostly this is because they yielded career to the common family desire to raise children. These women may be economically disadvantaged by ongoing child-rearing, or they may be subsequently hampered in seniority or employability. Where men have continued their careers, they tend to flourish economically post-separation. Women who have lost career traction tend to fare worse economically than their former male partners. This burden hampers their ongoing economic wellbeing. Parliament has determined to adjust this unfairness.

V v V—Judgment 239 [30] Generally, the Act draws a bright line between economic consequences within the relationship and economic consequences post-separation. The division of functions within the relationship is more or less deemed to have been consensual. All kinds of contributions to the relationship are treated as balancing. In the present case, the parties divided their functions along traditional gender lines. Ms V concentrated on the children, the household and support for Mr V; he provided the family income by working in his business. In this division of functions, they tacitly preferred her efforts to be spent in childcare and household support rather than in earning money. During the relationship, they shared what their teamwork produced; and after separation, they will divide their relationship property in terms of the Act—which now includes s 15. After separation, each former partner is entitled to their own post-separation earnings subject to maintenance and child support obligations. An award under s 15 is made out of relationship property. It breaches the pattern of formally equal sharing in order to produce justice, through a one-off capital adjustment. [31] Disparity in post-separation economic circumstances may result not only from loss experienced by one partner but by enhancement of the earning capacity of the other partner during the relationship. Where one partner has enhanced or consolidated their ongoing earning capacity on the back of the other partner’s support and deference it may be fair that a slice of the higher earner’s future income be attributed to effects of the division of functions during the relationship. If s 15 applies in such circumstances, a one-off payment is prescribed. Determining compensation for enhancement disparity touches on trickier territory than that for loss disparity because the scheme of the Act treats post-separation income as the separate property of the earner. In a s 15 enhancement claim, the award must be calculated against the likely future earnings of one party for the fair compensation of the other partner’s in-relationship enhancement of those earnings. Like a loss claim, the statute prescribes a capital adjustment to produce fairness from what otherwise would have been a formally equal division. [32] Compensation under s 15 is not calculated against past behaviour or the application of effort or skill during the relationship. Section 15 compensation addresses injustice found in the post-separation disparity of economic circumstances (income and living standards) between former partners. The ongoing injustice will have arisen from the effects of division of functions in the relationship. Its effects will fall unfairly against one partner relative to the other after the relationship ends. In those circumstances, what the section frankly calls “compensation” will be just. The award is to adjust between the former partners in order to achieve an overall fairness, looking to their respective futures. It is an adjustment that balances the relationship books against a criterion of justice where formally equal sharing will not produce a just outcome. Applying this theory to the present case: Should I exercise my discretion to make an award of compensation? [33] The choices made by Mr and Ms V in dividing their functions are neither to be commended nor criticised. They are enacted facts. A balanced description should note that Mr V has been an engaged father throughout. He has a warm relationship with all of the children. The youngest child is attached to both her parents. [34] Section 15 addresses economic consequences. Mr V experiences no economic disadvantage as a result of the division of functions within the relationship. His ability to consolidate his career was sustained by the domestic support provided by Ms V for 21 years. Just as he undertook the duty to earn income for them, she undertook the domestic duties that relieved him or freed him to carry out his role. The s 15 difference is that while he suffers no ongoing economic disadvantage from the division of functions, she does.

240  John Adams [35] Ms V cannot find employment that will provide what she would now have but for the withering economic effect of their division of functions on her former career. Across two decades while that withering occurred, she supported Mr V’s career socially and domestically. Her economic disadvantage will continue for several years. An award can compensate her. Because her economic disadvantage is a structural handicap caused by the circumstances about which s 15 speaks, it is more appropriately addressed by s 15 compensation than by maintenance. I should make an award. How shall I assess the compensatory award? A broad discretion [36] Because the applicant husband was unsuccessful in de Malmanche, the Judge did not calculate any s 15 award but nevertheless expressed concerns about the broad discretion in s 15. For example, he said at para [157]: “Section 15 does not in my judgment permit courts to exercise a broad and unfettered discretion to redress economic disparity simpliciter or to achieve social justice or gender equity objectives, however appealing such goals may be to individual judges.”

[37] The direction of relationship property law over the past 40 years demonstrates ­parliamentary concerns to address both social justice and gender equity in this field. The purpose of the new provision is no mystery. Although s 15 must be applied within its terms, observing its threshold tests, it undoubtedly addresses both social justice and gender equity. Those proper aims of the legislation should not be thwarted. [38] There are factors that guide the exercise of discretion. The Act offers broad principles, namely justice and compensation. An award must reflect these principles and the objects of the Act. But s 15 does not give a prescriptive formula for individual cases. In the absence of detailed guidance, the discretion should not be fettered. Parliament has left it to judges to determine where compensatory justice lies in individual cases. [39] The reintroduction of a broad discretion is a signal feature of s 15. It is the kind of statutory language with which many other jurisdictions cope, and which we only lost because the judiciary were out of step with what was expected. In New Zealand we have become acculturated to detailed rules that were imposed to guard against judicial error. We should not fear the trust imposed by the s 15 broad discretion. Certainly, it departs from the detail of post-1976 statutory rhetoric. The new provision mandates a confident judicial footstep where that will produce justice. Because its tenor is broad and discretionary, it seems proper to apply it accordingly, provided the threshold tests are satisfied. [40] The principle in s 1N(c) (“that a just division of relationship property has regard to the economic advantages or disadvantages to the spouses or partners arising from their … relationship”) drives s 15 and acknowledges that the way in which partners divide their functions within the relationship may economically disadvantage one party; and that the disadvantage may be ongoing. The economically disadvantaged party may be awarded money or property “for the purpose of compensating” that party. [41] Compensation is a significant term of s 15, suggesting that the disadvantaged party should be provided with a counter-balance, a requital. The payment is, within the relationship property context, to remedy the economic ongoing disadvantage. Pursuant to ss 1M(b) and (c), and 1N(c), an award must be just. [42] The undefended Family Court case of Fischbach v Bonnar [2002] NZFLR 705 is the only reported decision in which an award has been made. The decision does not explicitly reveal how the compensation was calculated. From a pool of approximately $144,000, an award of $30,000 produced a 70/30 division. [43] In Fischbach v Bonnar, the relationship lasted 9 years; the wife had foregone employment to raise children; the husband had left New Zealand so the wife had the sole

V v V—Judgment 241 burden of parenthood; the wife completed a law degree during the relationship; and the husband earned between NZ$70,000 and NZ$140,000 per year as an engineer. After separation, the wife relied upon a domestic purposes benefit. The Judge observed at para [66]: “The matter cannot be approached in isolation but rather can be addressed having regard to how other property is to be divided.” After noting the value of property that the husband would retain, the Judge said, also at para [66]: “A just sum for economic disparity in this case is, in my view, $30,000. This sum represents 40 per cent of the applicant’s share of the relationship property. I believe that this sum is sufficient to enable Ms Bonnar to redress the imbalance which has been foisted onto her, and at the same time leave Mr Fischbach with a reasonable return on his investment in their relationship.”

[44] I cannot find any principle in the Act that the paying partner should have a “­reasonable return on [their] investment in their relationship.” To take that approach seems to treat qualifying relationships akin to business relationships, whereas the Act indicates a warmer familial context. Section 15 considers the relative economic impact of the r­ elationship on both parties and provides for a compensating adjustment where justice requires. [45] The Fischbach v Bonnar decision suggests an award should have “regard to how other property is divided.” I read this to mean that an award should seem just from all sides; that the compensation should “do the job” in addressing the s 15 social and economic needs in the context of the particular case. The extent to which the wife’s intra-relationship gain of a law degree weighed in the award calculation is unstated. The award of $30,000 in that case, although a notable proportion of the available relationship property, is not a large sum to satisfy the ongoing economic disability of a mother, unable to work by reason of caring for two young children for several years. To halve or not to halve? [46] In Relationship Property in New Zealand (Bill Atkin and Wendy Parker, ­Butterworths, 2001 at pp 106 and 111) it is suggested that the appropriate compensatory sum to be paid by one party should be one half of the economic disadvantage suffered by the other party. This is because, where one party pays a sum out of that party’s share in the property, the resultant financial disparity between them is double the payment, like the shift of relative positions on a see-saw. A see-saw is an apt image for this idea: the lighter person needs added distance from the fulcrum in order to balance with the heavier person. As Party B is reduced by the compensatory sum, Party A is raised by the same sum so their resultant imbalance is double the paid amount. Another way of approaching the same idea in a s 15 loss claim is to regard the post-separation economic disadvantage as a notional contribution by Party A to the relationship which, in justice, should be compensated by both partners equally. It can be imagined as a debt owing by the relationship partnership. Therefore, it should be paid out of relationship property before division. That achieves the same result as requiring Party B to pay Party A one half of the “debt” from Party B’s share of the property. [47] For the purpose of compensation, s 15(3)(a) authorises a court to order payment of a sum of money from one party’s relationship property to the other party. The concept of compensation must reconcile with what is just in the particular case. Section 15(3) does not stipulate what particular sum must be paid; it is a machinery provision, authorising the court to make an effective order for transfer of money (or under paragraph (b), of property). Nothing in s15(3) stipulates how the compensating sum shall be calculated; the provision does not require that the payment be for the full calculation of post-separation income loss of the disadvantaged party although such a payment may be ordered if the court sees fit. For the reasons set out above in para [46], I take the view that, in general circumstances, justice between the parties will be found by halving the loss calculation so

242  John Adams that it produces a compensating disparity between them. But there may be circumstances where a payment up to the full loss will be just. In my view s 15(3) is sufficiently flexible to allow judges to not halve where that will achieve a just outcome in the circumstances of a particular case. Detailed or broad-brush? [48] I must calculate Ms V’s economic loss arising from the division of functions within the relationship and, taking into account the matters noted in s 15, determine an amount to be paid by Mr V that is just, in order to compensate her for that loss. The potential award may be as high as the total loss; it may be less. I am obliged to have regard to the likely earning capacity of each party, their childcare responsibilities and any other relevant consideration. [49] The award must be equally just to Mr V as well as Ms V. It must be balanced against the relationship history, and the relative economic positions of both parties now and as they are likely to be in the future. [50] Calculation of the award could be detailed or robust (broad-brush). A detailed approach would refine predictive calculations with the rhetoric of actuarial precision adjusted for ranges of discounts and contingencies. We are well used to this approach in, say, share valuations. An unfortunate feature of a methodology that adjusts for unforeseen contingencies is that an applicant can never obtain the full extent of their post-hearing loss if no unforeseen contingency eventuates. The fixed-sum nature of the contest will always corrode the applicant’s award. A robust approach would embark upon a broad holistic assessment of the relative situations of the parties and make a just but unfussy award, more in keeping with the equity aimed for by the new provision. A detailed approach fits with the statutory rhetoric that dominated before s 15 reintroduced a broad discretion. A broadbrush assessment is more in keeping with the intent of s 15 as indicated by its marked return to a broad discretion. For these reasons, and in order to openly fashion an award that is inextricably created by predictive assessment, I favour a broad approach. I think this is more appropriate than a method that proffers an illusory precision. [51] Nonetheless, a broad-brush assessment must be transparently reasoned so the ­parties and others can assess whether the award is a just remedy in the particular case in accordance with the purpose of this provision. Assessment in the present case [52] No compensation is payable in respect of the relationship period because, had Ms V earned income it would, like Mr V’s, have been used for family purposes or ­accumulated in relationship property. Section 15 authorises compensation from separation which in this case occurred about two and a half years before this hearing. [53] But for the consequences of the division of functions, I find that Ms V would now be earning $55,000 gross per year. This approximates to $40,000 after tax. If she were free to take up work today, because of lost seniority she would actually start at about $30,000 after tax. But she cannot do so because of childcare responsibilities. A childcare hearing six months from now will clarify her location issues. I assess that the period when she will be substantially restricted in locating full-time work will be not much more than 3 years from separation. Thereafter, for perhaps 5 years she will earn a few thousand dollars less annually than her potential after-tax $40,000 until she regains her work seniority. [54] Since separation, Mr V has earned, and is likely to continue to earn, $140,000 per year. [55] The pool of relationship property is substantial. An award will have more impact on Ms V (because of her economic need) than on Mr V whose superior earning power will soon moderate the effect of an award. As evidenced during the first two and a half years of separation, Mr V’s financial position will strongly outpace that of Ms V.

V v V—Judgment 243 [56] Ms V has earned her award from two decades of service to their relationship. ­During the same period, Mr V similarly served their relationship but his economic positioning has been sustained. He is able to assist the older children whereas she cannot. Ms V’s period of economic disadvantage is likely to be shorter than that of the applicant in Fischbach v ­Bonnar but the property pool is much larger here. [57] A cash sum now for prospective loss carries a use-of-money component but, counter to that, Ms V is currently carrying her loss for the two and a half years already elapsed since separation. Although I am persuaded in general to halve the sum payable, in this case her loss since separation has largely been to benefit Mr V’s ease of mid-week contact with their youngest child and he is in a position to pick up the tab for the economic consequence of that structure. Her post-separation service has not been undertaken between economic equals. Whatever the merits of the ongoing condition in a custodial setting, the economic effects on Ms V require redress if there is to be justice in economic terms. I am therefore inclined to order full compensation for a period of three years from separation (6 months of which is after this judgment), and thereafter on a halved basis. [58] I find that Ms V would have earned $120,000 after tax in the three years after separation but for the division of functions in the relationship. On the facts of this case, had she done so, I find she would not have needed any spousal maintenance. Therefore, in assessing her unmet need in that three-year period, I deduct maintenance paid ($24,500) and income she earned ($4500 from relieving work in the first two and a half years which I round up to $5000 as a reasonable assessment to bring the calculation to the three-year point). Consequently, I assess her net loss for the period of three years from date of separation to be $90,000. For the reasons set out in para [57], I do not halve this portion of her loss. [59] I assess her additional net loss thereafter, until she can regain parity with her “but for” income, at $60,000 which, for the reasons set out in paras [46] and [47] above, I halve to $30,000. [60] The sum of $90,000 for the first three years and $30,000 thereafter amounts to a prospective award of $120,000. That sum of $120,000, if paid by Mr V to Ms V, will compensate her for the economic consequences she carries forward from separation as a consequence of the way they divided their functions in the relationship. [61] An outcome cannot be regarded as just unless its effect in the round on both ­parties, separately and in comparison, is fair to both by attaining a just balance that satisfies the purpose of the provision. Overall, I find that the sum of $120,000 strikes a just balance between these parties in their particular circumstances. Their health and life expectancies are broadly similar. The award divides their $700,000 in approximate proportions of 66:34. Those proportions may seem unbalanced if we concentrate solely on the consequence that Mr V will get only about one-third of the property; she will get twice what he gets. That may seem unbalanced after a relationship where both contributed solidly over 21 years. However, a lesser amount would not properly compensate Ms V for the post-separation economic cost to her alone, flowing from her specific functions within their relationship. Her relationship partner Mr V has shared the benefit from her efforts and she is therefore entitled to look to him to compensate her by adjustment out of the property pool. The prospective award is a sum that he can and ought to accommodate. One partner should not be left to bear that ongoing burden unaided. The division of functions protected him from any corresponding economic deficit. In the circumstances of this case the prospective award achieves a just division. [62] Accordingly I order Mr V to pay Ms V $120,000 out of his share of the relationship property as compensation under s 15.

244 

14 Commentary on Lankow v Rose Property Division on the Breakdown of a De Facto Relationship: The Search for a Just Outcome NICOLA PEART AND KYLA MULLEN

Introduction The New Zealand Court of Appeal judgment in Lankow v Rose was a landmark decision in the resolution of property disputes between former de facto partners.1 There was then no statute regulating property division on the breakdown of de facto relationships. The proposal to include de facto partners in the Matrimonial Property Act 1976 (NZ) (MPA) was abandoned at the select committee stage,2 though the incorrect assumption that they were covered by the legislation and had the same rights as spouses to share equally in the property of the relationship persisted for many years.3 The courts resorted to equity and developed constructive trust principles to determine property claims by former de facto partners. De facto relationships were becoming increasingly common and functioned much like a marriage.4 Through their respective contributions to their household, partners typically acquired, enhanced, or preserved property for their joint use and benefit, often without explicitly considering their respective rights to the assets. As in marriage, they did not approach each other at arm’s length. But if the relationship came to an end and the bulk of the assets were held in the name of one of the parties, usually the male partner, the courts were faced with claims by the other party to a share in the beneficial ownership of the property. Lankow v Rose is one such case. It cemented a test for imposing a constructive trust based on the parties’ reasonable expectations of sharing the beneficial ownership of property whilst keeping awards at a moderate level by focussing on contributions to

1 

Lankow v Rose [1995] 1 NZLR 277 (CA). Matrimonial Property Bill (1976, 125-2) cl 49 struck out. Justice and Electoral Select Committee, De Facto Relationships (Property) Bill (1998, 108-1) i. The MPA 1976 established a deferred community property regime because marriage was seen as a partnership to which both spouses contributed equally, albeit in different ways. 4  In 1981 3.8% of people 15 years and over lived in de facto relationships compared to 8.5% in 1996. Statistics New Zealand, 1996 Census: www.govt.stats.nz. 2 

3 

246  Nicola Peart and Kyla Mullen property, rather than the relationship, and not according equal value to financial and non-financial contributions. This allowed the courts to maintain a distinction between marriage and de facto unions. It also resulted in outcomes that gave less weight to the roles predominantly performed by women in such relationships.

The High Court and Court of Appeal Judgments The Facts The factual context and the evaluation of the parties’ contributions are central features of these cases. Ms Rose and Mr Lankow were in a de facto relationship for ten years, from 1980 to 1990. There were no children from the relationship. The parties had virtually no equity in the assets owned at the start of their relationship. Ms Rose owned a car and some chattels worth about $6,000. Mr Lankow owned two flats and a vacant section, but his indebtedness equated to the value of his assets. His company, in which he was a two-thirds shareholder, was in dire financial straits. Conversely, Ms Rose was employed as a legal secretary and financially in a stronger position than Mr Lankow. For the first year Ms Rose bankrolled Mr Lankow. They lived off her income in one of Mr Lankow’s flats. She gave him $3,500 to settle his ex-wife’s matrimonial property claim and she contributed her own $24,000 matrimonial settlement plus $150,000 in wages to their joint expenses over the course of the relationship. She assisted Mr Lankow’s company to become profitable by lending it money and providing accounting, secretarial, and legal services free of charge. The substantial value of those services was evident in the $180,000 net profit Mr Lankow received when he sold his company shares in 1988 and retired. Ms Rose also managed the flat tenancies and assisted with their maintenance. In 1985 the couple spent $150,000 building a house on Mr Lankow’s land, with a small capital injection from Ms Rose and the balance coming from Mr Lankow’s income. Both contributed labour. In addition to her fulltime job, Ms Rose took responsibility for the domestic services to allow Mr Lankow to concentrate his efforts on his company. The couple enjoyed a good standard of living. The Court found that their relationship was a marriage partnership in all but legal form. At the end of the relationship there was a gross disparity in their respective asset positions. Mr Lankow’s assets had increased to $625,000: unencumbered flats worth $185,000, a house worth $260,000, $180,000 cash, a car, and chattels. Ms Rose, by contrast, had assets of only $30,000: a $22,000 car, chattels, and $4,500 cash. She brought proceedings, claiming a half share in the house and chattels and a $70,000 share in Mr Lankow’s other assets, representing $7,000 for each year of their relationship.

The High Court Judgment Ellis J in the High Court applied the reasonable expectations test from Gillies v Keogh.5 This test assesses objectively the reasonable expectations of persons in the shoes of the 5 

Gillies v Keogh [1989] 2 NZLR 327 (CA). See below at ‘The Reasonable Expectations Test’.

Lankow v Rose—Commentary 247 respective parties based on the claimant’s degree of sacrifice and their contributions to the property in question as compared to the benefits they received. The Judge found that Ms Rose had put her all into the relationship, contributing very directly as well as indirectly to the maintenance and increase in value and productivity of Mr Lankow’s assets. In regard to the house, the Judge concluded that Ms Rose was justified in thinking that, in addition to her own direct financial contribution, she had contributed indirectly to Mr Lankow’s cash contribution by using all her income for joint purposes. They were building ‘their home’. Ellis J concluded that Ms Rose made those contributions as well as contributions to the business and flats because she was confident she would have a substantial share in the home and chattels and that Mr Lankow would not have expected otherwise. The Judge thought the MPA’s presumption of equal sharing of the matrimonial home and chattels, and the distinction between sharing domestic property but not separate property in the MPA, reinforced this expectation for de facto partners.6 Ellis J did not believe Ms Rose’s expectations extended to an interest in the flats and the company, despite her significant contributions to those assets. The Judge thought Ms Rose would have continued contributing to those assets, provided she was assured of a share in the home and chattels.7 His Honour likened the flats and company to separate property under the MPA.8 Ms Rose’s contributions to those assets were more appropriately reflected in a half share of the home and chattels, which amounted to about $130,000 which was approximately 20% of the total asset pool. Bearing in mind the parties’ broadly equivalent weak asset position at the start of the relationship, the considerable efforts Ms Rose put into the relationship, and the increase in value of the business and domestic assets, the Judge’s reasoning may seem startling, even in the 1990s. It assumes a gender specific view of the parties’ roles and expectations, out of step with the realities of the factual context of the relationship, combined with a conservative evaluation of Ms Rose’s contributions. On the other hand, it seems that Ms Rose’s own estimate of her contributions to the non-domestic assets was also quite conservative. In those circumstances it is perhaps unsurprising that she received only a quarter share of the total wealth accumulated during the relationship. Mr Lankow appealed the decision. Ms Rose did not cross-appeal on quantum.

The Court of Appeal Judgments The appeal was heard by a bench of five male judges. All five judgments dismissed Mr Lankow’s appeal and agreed that the reasonable expectations test was appropriate to resolve this sort of case. Tipping J formulated the now widely used test that requires:9 (1) (2) (3) (4)

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direct or indirect contributions to the property; an expectation of an interest in that property; that the expectation was reasonable; and that the defendant should reasonably expect to yield the claimant an interest.

Rose v Lankow (HC Wellington CP1009/90, 27 July 1993) 13–14. ibid 14. 8  ibid 15. 9  Lankow v Rose [1995] 1 NZLR 277 (CA) 294. 7 

248  Nicola Peart and Kyla Mullen Under this test any payment or service by the claimant would be a contribution if of itself it assisted or helped the other party to acquire, improve or maintain the property or its value. Contributions in the home could thus qualify as contributions to the home.10 If all elements were established, the Court would impose a constructive trust because equity would regard it as unconscionable for the legal owner to deny the claimant a beneficial interest in the property. Gault J agreed with Tipping J’s reasoning and outcome, but preferred unjust enrichment as an approach with broader application.11 To confine claimants to reasonable expectations precludes the possibility that in unusual circumstances another approach might provide a better outcome for the claimant.12 Applying the test formulated by Tipping J to the facts, all the Judges agreed that Ms Rose directly and indirectly contributed both payments and services that in a very real sense increased the value of Mr Lankow’s property and that her contributions outweighed the benefits she had received during the relationship. But they criticised the analogy with the MPA both for purposes of determining the parties’ expectations and in assessing quantum. Unlike married couples, de facto claimants started from a zero interest in each other’s property, increasing their interest broadly in proportion to their contributions. Ms Rose’s belief that as a de facto partner she was entitled to a half share was relevant to her expectation of an interest, but did not entitle her to a half share.13 The Judges did accept, however, that the MPA had influenced society’s attitude to property division between couples, reinforcing the credibility of Ms Rose’s expectation.14 The Court of Appeal agreed that Ms Rose’s overall contributions could be traced to the home and were best reflected by an award in respect thereof, rather than giving her a share of any of his other assets.15 While there was no cross appeal on quantum, the dicta of the Judges indicate that they would not have awarded Ms Rose any more than a half share in the house and chattels, representing about one quarter of their combined assets.16 Underpinning that assessment was a concern to avoid equating de facto relationships with marriage. As Cooke P observed, ‘the present New Zealand case law represents an attempt to ensure justice while recognising that there is a basic difference between legal marriage and de facto union’.17

The Reasonable Expectations Test The reasonable expectations test was developed in the context of property disputes between former de facto partners to circumvent the constraints of the common intention

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ibid 295. Cooke P 280 and McKay J 289 favour the reasonable expectations approach while Hardie Boys J 282 saw no need to differentiate between the various approaches for purposes of this case. 12  ibid 288. 13  ibid 297 (Tipping J) and 290 (McKay J). 14  ibid 290 (McKay J). 15  ibid 301 (Tipping J), 291 (McKay J), and 286 (Hardie Boys J). 16  ibid 301 (Tipping J). 17  ibid 281. 11 

Lankow v Rose—Commentary 249 test adopted by the House of Lords in Gissing v Gissing.18 Absent an agreement or understanding between the parties to share the property beneficially, a common intention would be inferred only if the claimant made financial contributions to the acquisition of the property. The reasonable expectations test was first mentioned in Hayward v Giordani in 1983.19 Although the evidence in that case supported the finding of a common intention, Cooke J suggested that in the alternative the parties’ reasonable expectations might provide an appropriate basis for responding to property disputes between former de facto couples. The social reality for many de facto couples was that they accumulated property through their joint efforts without applying their mind to the proprietary consequences of their efforts. It was a function of courts ‘to develop the common law and equity so as to reflect the reasonable dictates of social facts, not to frustrate them’.20 Subsequently, in Pasi v Kamana, Cooke P expressed doubt as to whether, for purposes of resolving property disputes between former couples, there was a significant difference between the common intention test in England, the unconscionability test in Australia, and the unjust enrichment test in Canada.21 They were probably ‘all driving in the same direction’, using ‘different formulae for the same idea’, which was ‘whether a reasonable person in the shoes of the claimant would have understood that his or her efforts would naturally result in an interest in the property’.22 In 1989, in Gillies v Keogh, Cooke P articulated his reasonable expectations test more clearly. Although it did not have unanimous support,23 it became the established test for dealing with property disputes between former de facto partners where no common intention could be found. His Honour accepted that in today’s society a reasonable expectation of an interest would arise in some de facto relationships if nothing was said to the contrary.24 In Gillies v Keogh, Ms Gillies’ repeated statements to Mr Keogh that the house he was helping to renovate was hers meant that he could have no reasonable expectation of a beneficial interest. His contributions must therefore have been a gift, even though that might not have been his intention. The reasonable expectations test was nonetheless more favourable to women claimants, especially as compared to England’s common intention test. Not only did the presumption of an expectation of sharing relieve some of the evidentiary burden on claimants, contributions of a non-financial nature that were only indirectly referable to the property could support the claim. Domestic contributions and care of children could therefore result in a share of the beneficial ownership of the home, but not normally beyond the home. Furthermore, as Lankow v Rose shows, non-financial contributions were not accorded the same weight as financial contributions. In the absence of equal financial contributions, equal division between the partners was unlikely. That was a conscious choice by the courts

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Gissing v Gissing [1971] AC 886 (HL). Hayward v Giordani [1983] NZLR 140 (CA) 148. ibid 148. 21  Pasi v Kamana [1986] 1 NZLR 603 (CA). 22  ibid 605. 23  Gillies v Keogh (n 5). Richardson J preferred estoppel 344. 24  ibid 333. 19  20 

250  Nicola Peart and Kyla Mullen to avoid assimilating de facto unions and marriage.25 It was up to Parliament to change the law if legal and de facto unions were to be treated alike. Given the gender specific division of functions in many de facto relationships, the usual effect of the court’s approach was to favour the male partner over the female partner. Equality was not achieved until 2001 when Parliament amended the MPA, renaming it the Property (Relationships) Act 1976 (NZ) (PRA),26 and giving de facto partners, including same sex couples, the same rights as spouses provided they had lived together as a couple for three or more years.27 Lankow v Rose type constructive trust claims are still being made following the breakdown of a marriage or de facto relationship. But they are now brought against trustees of express trusts holding assets, such as the family home, to which the applicant has contributed in circumstances where the applicant’s spouse or partner is a trustee and has allowed a reasonable expectation of sharing the beneficial ownership of the trust assets to arise. As with claims by de facto partners prior to the adoption of the PRA, such claims are most often made by women whose contributions to the trust assets are often indirect and of a non-financial nature.28 Not only do these claimants run the risk of their services being undervalued, they also face the hurdle of establishing that the partner’s co-trustees should yield an interest.

The Feminist Judgment Bennett J agrees with the other members of the Court of Appeal that Mr Lankow’s appeal must be dismissed. However, like Gault J, he prefers unjust enrichment as the basis for resolving disputes between former de facto partners because it is better suited to the reality of intimate relationships and the risk of domination by the male partner of the female partner. Bennett J likens these types of relationships to marriage where both parties contribute towards the economy of a shared life of indefinite duration. Even if Ms Rose had no reasonable expectation of a property right in any particular item of Mr Lankow’s property, an unjust enrichment claim would not preclude a remedy to compensate her for enriching Mr Lankow by making direct and indirect contributions of value to him. Regardless of her expectations, it is unjust for Mr Lankow to refuse to restore this enrichment at the end of the relationship. Gendered norms informed the High Court and Court of Appeal decisions in this case. The sexual division of labour places women as domestic workers and child-raisers even when they also work outside the home. This resulting stereotypical view of women tainted the outcomes in both Courts. They ignored the reality of Ms Rose’s contributions to the business and flats and assumed that an award of a share in the home and chattels would adequately recognise her roles within the relationship. The decision reinforced the view that the domestic sphere was the domain of women while business was the domain of men.

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ibid 332. Property (Relationships) Amendment Act 2001 (NZ), s 5(2). 27  Property (Relationships) Act 1976 (NZ), s 4. 28  See, eg, Murrell v Hamilton [2014] NZCA 377; Vervoort v Forrest [2016] NZCA 375, [2016] 3 NZLR 807. Family trusts are common in New Zealand and many hold family assets produced by couples during their relationship. 26 

Lankow v Rose—Commentary 251 The feminist judge takes a different perspective, considering the lived experience of Ms Rose in the context of her relationship with Mr Lankow. In acknowledging women’s diverse experiences in de facto relationships, the common gendered patterns of work and contributions within relationships, and drawing on a wide background of feminist literature, Bennett J aims to understand women’s experiences and challenge entrenched genderbiases. His Honour considers the range of options available for achieving justice for women in these circumstances and finds that the reasonable expectations test does not achieve justice in all cases. Restricting the options available to claimants reduces the opportunities for women to achieve equity in the diverse circumstances that the courts must address post de facto relationship breakdowns. Bennett J goes on to note that the legal response to clear statements made by a party to a relationship that property would not be shared needs reconsideration on an appropriate occasion because of the potential influence of emotional violence and subtle coercion in relationships. While a just outcome in this case is unattainable because neither party appealed on quantum, the feminist judge reasons from the context of the situation to achieve an individualised solution. In his view, a half share of the house and chattels is insufficient on either a reasonable expectations or unjust enrichment assessment. The award fails to take adequate account of Ms Rose’s services to Mr Lankow’s business and flats. He concludes that her quantification of the value of these services at $7,000 per year may have been appropriate. In our view, Ms Rose’s quantification undervalued her services, even in the 1990s. This, as well as her decision not to appeal on quantum, reflects gendered norms of the time and exposes the legal system’s reinforcement of the vulnerable position of female de facto partners on relationship breakdown.

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Lankow v Rose

10 Court of Appeal  Wellington 13, 14 September; 2 December 1994 Cooke P, Bennett, Hardie Boys, Gault, McKay and Tipping JJ BENNETT J. I have the advantage of having read in draft the judgments of the other members of this Court, and I agree with them that the appeal should be dismissed and the orders of Tipping J made. Although I accept the existence of a constructive trust based on reasonable expectations, I write separately to emphasise the social circumstances to which the law is responding, to demonstrate why the appellant’s argument must fail according 20 to the principles of unjust enrichment, and to comment on the issue of the quantification of the claimant’s entitlement. 15

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Facts and approach The facts of this case and the reasoning in the High Court are comprehensively set out in the judgments of Hardie Boys J and Tipping J. Mr Lankow asks this court to overturn the High Court’s decision and to find that Ms Rose has no proprietary claim against his assets. In making this argument, the appellant’s counsel both relied on and strenuously criticised this Court’s decision in Gillies v Keogh [1989] 2 NZLR 327, which reflects the fact that the law’s doctrinal basis in this area is still controversial. Indeed, Ms Rose based her claim in the High Court on three different doctrines, referring to principles of trusts law, estoppel, and unjust enrichment. In Gillies v Keogh, Richardson J expressed discomfort with judicial dependence on “fairness” and the existing reliance on trusts and unjust enrichment as the doctrinal basis for the division of de facto property, and preferred to use estoppel as a more principled basis. In contrast to this more critical view of the law, Cooke P observed in Pasi v Kamana [1986] 1 NZLR 603 (at p 605) that, in essence, all of the various doctrines used in Commonwealth jurisdictions “are probably different formulae for the same idea” so that “we are all driving in the same direction”. With the greatest respect to that view, I believe there are differences in principle and doctrine between orthodox trusts law, estoppel, and unjust enrichment—a point also made in Gault J’s judgment in this case. If the claim that the various doctrines are all based in the same idea is intended to mean that our courts should treat the reasonable expectations approach as replacing the other approaches in New Zealand, I disagree. For this would close off legal roads that a claimant may use to achieve justice: one doctrine may provide a claim in circumstances where the other doctrines do not. Although unjust enrichment has not been applied on its own terms in previous decisions of this Court, the principles developed by the Canadian courts have informed the development of the reasonable expectations claim. As the appellant’s argument is based in part on unjust enrichment principles, I take this opportunity to show how unjust enrichment applies to the unique social situation of the breakdown of de facto relationships.

Lankow v Rose—Judgment 253 Property disputes after de facto relationships “De facto” relationships are those in which unmarried couples are living in substance in the way that we expect married couples to live, sharing an intimate and domestic life together. In Gillies v Keogh (at p 340), Richardson J noted the increasing frequency of de facto partnerships in New Zealand, as well as the fact that Parliament has legislated 5 in many areas to give de facto partners the same legal rights and obligations as spouses. The number of people entering into de facto relationships has almost doubled in the years between the 1981 and 1991 censuses—from 87,960 to 161,865. However, Parliament has not legislated to address the problem of how to fairly share property that was acquired through the efforts of both parties to the relationship in situa- 10 tions where legal title is held by only one of them. In the past, courts in the Commonwealth were constrained by our law of property to do “great injustice to particular litigants. It often seems unfair for one cohabitant to reap the whole (or the major portion) of economic benefit arising from years of cohabitation and economic sharing”: Daly v Gilbert [1993] NZFLR 513 at p 519 per Hammond J. In such cases, the courts found themselves unable to fashion 15 the “bleak and inflexible rules of property law” (Hofman v Hofman [1965] NZLR 795 at p 798 per Woodhouse J) in a way that avoided the injustice. These injustices were ameliorated in the case of divorces by the introduction of statutory matrimonial property regimes such as our Matrimonial Property Act 1976, which recognises the special nature of domestic relationships by providing for equal property 20 sharing when a marriage ends. As this legislation does not apply to de facto relationships, when disputes come before the courts the judiciary must respond to this social problem by means of general legal doctrines. Gender patterns in paid and domestic work In developing the common law, judges ought to consider the nature of the social ­problem at hand, including the wider social effects of their decisions. In relationship ­property law, judges should note the general social patterns that arise within marriages and heterosexual de facto relationships with respect to the division of labour between the male and female partners: see Professor Marcia Neave’s article “Living Together—the Legal Effects of the Sexual Division of Labour in Four Common Law Countries” (1991) 17 Monash University Law Review 14; M Waring Counting for Nothing (1988). Despite some developments in the workplace and in the sharing of domestic labour and childcare within marriages and de facto relationships, it is still much more likely that it is the man who continues his career in paid work and the woman who meets the material and physical needs of her partner and family, consequently undertaking substantial unpaid work within the home. Professor Neave (at p 14) summarises social research as showing that “[w]omen living with men in heterosexual relationships continue to take major responsibility for domestic tasks such as cooking, cleaning, laundering, shopping and child-rearing, even when they also work outside the home.” While I am not aware of any detailed time use study in New Zealand, this sexual division of labour is reflected in the statistics on paid work. In only 1.8% of two-parent families the woman and not the man participates in paid work: New Zealand Yearbook 1994 (1994) section 5.3. The 1986 census recorded that 320,000 women indicated that domestic activities were their main work, with only 8,500 men indicating the same. Being focussed on domestic work, the woman is likely to have put her paid work career on hold— if not indefinitely abandoned it—thereby acquiring less property in the form of wages. When they do engage in full time paid work, women on average earn far less than men, their average hourly wage being just over $13 compared with men’s $16: New Zealand

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Yearbook 1994 (1994) section 13.4. Often because of their domestic responsibilities and experiences, women disproportionately take low-paid caring work and part-time work that does not have a career progression to high status and remuneration positions. This social situation is usually less problematic while the relationship ongoing, during which time the benefit of the man’s income and property will generally be shared with his partner as the material basis of their life together. But the stark injustices of this situation are revealed if the relationship breaks down. The Royal Commission on Social Policy (Vol II, 1991) noted in its report that “[a]ll too often the cost for women of unwaged work, especially caring for others, is long-term financial dependency, hardship and ­vulnerability” (at p 195). If there is no legal requirement for property sharing or maintenance, the breakdown of the relationship may plunge the woman—and children, if they exist—into financial hardship or poverty, and reliance on state welfare support. The man is more likely to have accumulated property in his own name, and is more likely to have increased his current and future earning opportunities by progressing up the career ladder: see Davey From Birth to Death III (1993) at p 200, and Weitzmann The Divorce Revolution: The ­Unexpected Social and Economic Consequences for Women and Children in America (1985). Furthermore, where the general pattern is adopted, the man’s financial dominance may also constitute a means of power and control during the relationship. These social facts and the research on which they are based have been noted in decisions of the High Court of Australia (Van Gervan v Fenton (1992) 175 CLR 327 at fn 37; Singer v Berghouse (No 2) (1994) 181 CLR 201 at fn 42), while in the Supreme Court of ­Canada L’Heureux-Dubé J has noted that “the feminization of poverty is an entrenched social phenomenon”, and attributed this in part to the financial effects of marriage breakdown: Moge v Moge (1993) 99 DLR (4th) 456 at pp 482–484. Courts in New Zealand should similarly be careful to consider how their development of the law may affect this social reality. The judicial response It must be acknowledged that in recent years New Zealand and Commonwealth judges have generally responded to this social problem to their credit, by developing the law in the attempt to “achieve socially just results in accordance with legal principle”: Gillies v Keogh at p 340 per Richardson J. Without legislative intervention, courts around the common law world have developed a broadly consistent legal response: see the cases discussed by Cooke P in Hayward v Giordani [1983] NZLR 140 at pp 145–149 and by Richardson J in Gillies v Keogh at pp 340–344. There is a clear desire among judges to recognise that household and childcare work are not simply to be regarded as beyond the realm of valuable economic services, “a pernicious [notion] that systematically devalues the contributions which women tend to make to the family economy”: Peter v Beblow (1993) 101 DLR (4th) 621 at p 648 per McLachlin J. Neither is such work a gift to be expected from the woman to the man, made simply as an expression of natural love and affection (as in Pettitt v Pettitt [1970] AC 777, Hohol v Hohol [1981] VR 221 and see Peter v Beblow at pp 646–648). In this jurisdiction, this Court has freed equitable claims in this area from their exclusive focus on financial contributions found in resulting trust and early constructive trust doctrine to allow for domestic contributions to form the basis of a claim against the defendant’s property: this was clear in Gillies v Keogh (at pp 335 and 346) and is affirmed in this case. In addition, the law in New Zealand has shifted away from the actual or inferred intentions of the parties to a more objective test of reasonable expectations. This began in Hayward v Giordani when the search for common intentions was criticised (at pp 148 and 149), and was confirmed in Gillies v Keogh (at p 331) where Cooke P

Lankow v Rose—Judgment 255 stated that, “reasonable expectations in light of the conduct of the parties are at the heart of the matter.” The uniqueness of the relationship In developing the law, courts have recognised that the social situation of de facto 5 ­relationship breakdown is unique and fundamentally different from an arm’s-length commercial transaction or even a business partnership. Today, de facto relationships are often akin to marriage, which—as described by L’Heureux-Dubé J—“may be the location of safety and comfort, and may be the place where its members have their most intimate human contact”, acting with the family as “an emotional and economic support system as 10 well as a forum for intimacy”: Moge v Moge at p 478. They contain aspects that are seldom found in other relationships, most notably romantic love and the idea of an enduring shared life together. As Cory J observed in Peter v Beblow, in de facto relationships the partners will not only share financial fortunes but (at p 632), “[m]ore importantly, couples such as the parties to this case will strive to make a 15 home. By that I mean a place that provides safety, security and love and which is as well frequently the place where children may be cared for and nurtured. In a relationship that involves living and sleeping together, couples will share their worst fears and frustrations and their fondest dreams and aspirations. They will plan and work together to achieve their goals. Just as much as parties to a formal marriage, the partners in a 20 long-term common law relationship will base their actions on mutual love and trust.” While a de facto relationship continues, there is a sharing of a life together that—apart from close immediate family bonds—may be unmatched by any other relationship. This is usually true even where the profound bonds of love and sexual desire are strained or have torn, as they must have at least at the time that the relationship has come to an end. Until the breakup of the relationship there is a sense that it will continue; there must seldom be any specified duration or “term” for a relationship that is planned in advance. Even when it seems likely that a breakup may occur, this point will only be reached after a period in which it was not considered at all. Courts have drawn important legal implications from the uniqueness of intimate relationships, recognising that in such relationships contributions of value are usually premised on the continuance of the shared life, and are made to “enhance joint fortunes”, in the words of McKay J in his judgment. This is evident in the key Australian decisions. In Muschinski v Dodds (1985) 160 CLR 583 at p 622, Deane J stated that “any assessment of what would and would not constitute unconscionable conduct would obviously be greatly influenced by the special considerations applicable to a case where a husband and wife or persons living in a de facto situation contribute, financially and in a variety of other ways, over a lengthy period to the establishment of a joint home.” In Baumgartner v ­Baumgartner (1987) 164 CLR 137 at p 149, the intimate family relationship was characterised as one in which contributions were made on the basis of a “joint relationship and for their mutual security and benefit.” In New Zealand, the test of “reasonable expectations” as the basis for finding a constructive trust in the circumstances of de facto separation has also been justified by reference to the unique nature of the relationship, which leads more easily to expectations that resources are shared. Cooke P observed in Hayward v Giordani (at p 148) that “a stable de facto union provides a background in which a constructive trust will tend to arise much more naturally than as between strangers.” Richardson J’s estoppel analysis in Gillies v Keogh made much of the unique circumstances of many de facto relationships, stating (at p 347) that “social attitudes in New Zealand readily lead to expectations, by those

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with apparently stable and enduring relationships, that family assets are ordinarily shared, unless it is agreed otherwise or made plain.” Indeed, the general pattern of the division of labour within marriages and de facto ­relationships described previously will usually be premised on the expectation of a continued shared life. Women now embark on paid work careers at a far greater rate than in earlier times, but if they are in an intimate domestic relationship they are more likely to give up their career for a time, especially where there are children. The assumptions about the uniqueness of the relationship will usually be a strong factor in their taking this decision, which on a purely rational economic basis is detrimental to their financial position. It is the common understanding of the security that the relationship affords that allows women to take this decision, usually with the express or implied support of their partner. This is recognised by Richardson J’s observation, in Gillies v Keogh at p 346, that domestic services “are likely to have been induced by reasonable expectations of security of the family environment and of sharing the family assets on which the de facto relationship is based”. Although the relationship between Ms Rose and Mr Lankow did not involve either partner giving up a paid work career, the other features described above are clearly ­present in this case. The Judge’s findings on the evidence show that Ms Rose devoted herself to Mr Lankow and provided for his needs and support due to her certainty both that her contributions were to their shared life, and that if the relationship ended Mr Lankow would recognise her claim. This certainty was in turn based on the nature of their relationship. The courts have developed the law to respond to these expectations. Thus, the recognition of the unique situation that exists in most de facto relationships by New Zealand courts has allowed the reasonable expectations approach to develop, with the result that work undertaken during a relationship that represents a gratuitous ­transfer of value from one partner to another will often lead to the result that the transferor has a proportionate beneficial interest in some of the transferee’s property. In the following ­section I show how the same recognition of uniqueness allows the courts to develop the principle of unjust enrichment as a complementary or alternative claim that de facto ­partners can make after their relationship has ended. The application of unjust enrichment Although New Zealand courts have decided de facto property cases primarily through the basic test of reasonable expectations, a distinct claim based on the doctrine of unjust enrichment jurisprudence should also be recognised in New Zealand: see Watts “Restitution for Work and Services Performed as a Result of a Mistake or Failed Assumptions” in Kós and Watts Unjust Enrichment—the New Cause of Action (1990). Unjust enrichment reasoning provides the best doctrinal foundation for the reasonable expectations doctrine and continues to be the claim that dominates these issues in Canada, and it was also strongly supported by Toohey J in the High Court of Australia’s decision in Baumgartner v Baumgartner at pp 151–155. I would apply unjust enrichment reasoning to this case, developing the law to account for the uniqueness of the situation of de facto relationships. There are three requirements in an unjust enrichment claim. There must be an enrichment of the defendant, that enrichment coming at the expense or “deprivation” of the claimant, and the enrichment must be characterised as unjust: Pettkus v Becker (1980) 117 DLR (3d) 257 at p 273–274; Sorochan v Sorochan (1986) 29 DLR (4th) 1 at p 5; Peter v Beblow at pp 631–636 and 643. Applying these elements to de facto relationships, there will often be monetary and service contributions made by the claimant to the enrichment of the defendant, and these contributions outweigh the value that the claimant received from the relationship. There may be a question concerning whether services that do not leave the defendant with some end-product that has a marketable value should be regarded as an

Lankow v Rose—Judgment 257 enrichment, but the Canadian decisions do not see this as a problem, and I agree, so long as the defendant can be said to have valued the services. The response to the claim will be a personal right to restoration of the enrichment. In addition to this personal right, where there is a causal connection between the enrichment and particular property held by the defendant (whether by contributing to its acquisition, improvement, maintenance or preservation) along with a reasonable expectation of an interest in that property, the remedy may be proprietary: Sorochan v Sorochan at pp 7–12; Peter v Beblow at pp 637–641. The Canadian courts seem to have developed a different approach to the unjust enrichment claim by not requiring that the claimant identify any particular unjust factor that grounds the claim for an enrichment to be restored; rather, the defendant must justify its retention by showing that there was a legal basis for their enrichment: Peter v Beblow at p 643–649 per McLachlin J. In Pettkus v Becker at p 274, these ideas are blended: there is an absence of juristic reason for, or an unjust factor relating to, an enrichment where “one person in a relationship tantamount to spousal prejudices herself in the reasonable expectation of receiving an interest in property and the other person in the relationship freely accepts benefits conferred by the first person in circumstances where he knows or ought to have known of that reasonable expectation”. I prefer the more orthodox approach that identifies an unjust factor, and it is possible to identify this factor in this case and other similar de facto situations. Ms Rose performed services and provided payments to Mr Lankow and his property in the context of and on the basis of an intimate and indefinite relationship in which they shared a household and she indirectly benefited from the defendant’s property. The unjust factor is the failure to restore the enrichments when the relationship breaks down, because the enrichment was rendered to the defendant on a basis (the continuance of the relationship) that has subsequently failed. Such an unjust factor will be present in many cases of the breakdown of de facto relationships in which traditional gender roles have been assumed. It might be objected that this approach does not fit squarely within traditional failure of consideration reasoning. However, it seems to me that the concept behind these doctrines must be moulded to the facts of de facto relationships because of the reasons noted above concerning the uniqueness of such relationships when compared with those between strangers or arm’s-length commercial parties. Within a domestic relationship, the enrichment was intended as a contribution to the economy of a shared life together, rather than to belong to the defendant only. In the usual case, it would be contrary to the facts for courts to treat the enrichment as a gift in these circumstances. The defendant should have known that the claimant expected that their contributions to the defendant were provided on the basis that the relationship would continue indefinitely, and that they should be restored if the relationship broke down. As Cory J puts it in Peter v Beblow (at p 634), citing Professor Neave’s above article at 254:

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“Couples who decide that one partner, usually the woman, will forgo paid employ40 ment to provide domestic services and provide child care, presumably believe that this arrangement will maximize their economic resources. Grant of relief, whether personal or proprietary, to the provider of domestic services would recognize that the income-earning capacity of one partner and his ability to acquire assets have been enhanced by the unpaid services of the other and that those services were only pro45 vided free because it was believed that the relationship would continue.” The objections to this approach, based as they are on considering examples of enrichments between strangers or arm’s-length parties, do not undermine this reasoning. Ms Rose therefore has a claim in unjust enrichment against Mr Lankow, requiring him to restore the enrichment made to him on the basis of their relationship. The quantum of

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258  Mark Bennett the claim is the amount of value she provided to him that was not offset by value that he provided to her. I will discuss the quantification point shortly, but first I will show why the appellant’s key argument against Ms Rose’s claim must fail. 5 Restoring enrichment without a proprietary claim The appellant made much of Ms Rose’s statement that her work for Mr Lankow and his company was done with the idea of saving him and the company money—“to save him money and keep the company afloat”—rather than with the idea of Ms Rose gaining an interest in Mr Lankow’s property. This was presented as showing that Ms Rose knew that 10 she would not have any interest in Mr Lankow’s property due to her contributions. The reasonable expectations approach, and particularly the decision in Gillies v Keogh, would rule out any claim because she had no reasonable expectation of a property interest. At trial Ellis J applied this reasoning to Ms Rose’s monetary claims, not because of any express denial by Mr Lankow of an interest in the flats and proceeds from the sale of his company 15 shares but because of the expectations concerning this other property that the Judge identified as implicit in the relationship. This ruling illustrates a key difference between the reasonable expectations and the unjust enrichment doctrines. As it results in the proprietary response of a constructive trust, the reasonable expectations claim must relate to expectations of an interest in particular 20 items of property. As Cooke P made clear in Gillies v Keogh (at p 334), parties in a de facto relationship are “free to make their own property arrangements” and reasonable expectations claims therefore fail if the defendant made it clear that particular property is to remain theirs alone. Putting this in the terms of the unjust enrichment claim, Cooke P said that where the defendant had indicated that the claimant would have no legal claim to the 25 contributions of value that the claimant had made, the juristic reason for the enrichment of the defendant would be a gift: the “sole legal owner can protect his or her position simply by making it clear to the other party that, while the use of the property is shared, ownership is not” (at 334). While I agree with these points in regards to the constructive trust remedy to the 30 reasonable expectations claim, the way that they were used in Gillies v Keogh to deny the claimant any legal claim is with respect an important example of the problems of the “driving in the same direction” view: it obscures the alternative claim in unjust enrichment. Although only Gillies’ name was put on the legal title to the house, and she had made it clear that the house was hers and did not belong at all to Keogh, it is not clear that 35 such representations would defeat an unjust enrichment claim of the form recognised by Canadian courts. For, as Gault J observes in his reasons in the present case, the Canadian approach may provide a remedy in cases “where there has been an enrichment even though there was a clear understanding that a proprietary interest in particular property would not be obtained.” This can be seen in some of the key Canadian decisions, such as Pettkus v Becker and 40 Sorochan v Sorochan, in which the defendants deliberately refused to provide the claimants with any formal legal interest in their property, and clearly discouraged the claimants from thinking that they had any interest in their property whatsoever. There could therefore be no expectation based on the actions or expressed intentions of the defendant that the 45 property was co-owned. However, this did not exclude the unjust enrichment claim in these cases. To the extent that this is justified by the Canadian courts, it is due to the focus of the claim being on the enrichment of the defendant at the expense of the claimant, and the lack of juristic reason for that enrichment; the proprietary intentions of the parties are irrelevant. The lack of juristic reason does turn on the claimant having a reasonable expectation of 50 receiving something in return if the relationship should end (Sorochan v Sorochan at p 7;

Lankow v Rose—Judgment 259 Peter v Beblow at p 635) but this is not precluded by the defendant’s refusal to transfer property to the claimant or to acknowledge a beneficial interest in particular property (Pettkus v Becker at pp 271–273; Sorochan v Sorochan at p 7). The practical consequences of this position can be seen in the High Court’s decision in Daly v Gilbert. There Hammond J found that there was no possible proprietary interest based on reasonable expectations because there was “an unequivocal expressed intention” that the property be owned absolutely by the defendant (at p 522). However, he allowed (at pp 525–526) monetary claims to restitution based on both the established category of quantum meruit and the development of principles of the law of unjust enrichment in relation to the facts. Hammond J observed that developing the unjust enrichment claim beyond the traditional categories required a policy decision to treat an enrichment in the particular circumstances as unjust. The basis for making such a characterisation is supplied by the reasoning above concerning the unique nature of de facto relationships. Therefore, I would respectfully reject Ellis J’s view that no claim could be made to the proceeds from the sale of Mr Lankow’s company and to the rental properties. Even if on the reasonable expectations approach no proprietary rights could exist in respect of them, this does not prevent an unjust enrichment claim against Mr Lankow personally in order to restore the enrichment. The unjust factor is the defendant retaining the enrichment in circumstances where it was made due to the existence of the relationship and that relationship has come to an end. The uniqueness of de facto relationships means that it would require the clearest evidence to show that the claimant’s contributions were regarded as an absolute gift. The appellant’s argument on the unjust enrichment basis must fail. Although the issue is not raised in this case, it follows from my reasoning regarding the uniqueness of de facto relationships that even the legal response to a clear statement that the contributor will have no rights whatsoever to recompense for their contributions requires reconsideration. Courts should particularly be alive to the underlying social dynamics of relationships, including the potential for emotional violence and subtle coercion: as Lord Browne-Wilkinson observed in Barclays Bank plc v O’Brien [1993] 4 All ER 417 (at p 424), “the sexual and emotional ties between the parties provide a ready weapon for undue influence: a wife’s true wishes can easily be overborne because of her fear of destroying or damaging the wider relationship between her and her husband if she opposes his wishes.” For this reason, the courts should re-examine the availability of undue influence and unconscionable bargain claims even in these “non-recompense” circumstances: Barclays Bank plc v O’Brien; Louth v Diprose (1992) HCA 61.

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35 Quantification Although the quantum of the claimant’s remedy has not been appealed, my view is that the trial judge’s method of quantification was incorrect. Ellis J found that Ms Rose contributed domestic labour, payments for the household expenses, services for Mr Lankow’s company and tenancies, and some payment towards the building of the house and the fur- 40 nishing of it with new chattels. His analysis on quantum focussed on reasonable expectations rather than strictly on contributions. On this basis, the house and chattels acquired for the purposes of the relationship were shared equally but no reasonable expectations existed with respect to Mr Lankow’s business assets or rental properties. The appropriate quantum on that approach is reflected in Tipping J’s more precise orders that effect the equal shar- 45 ing of the house and chattels, yielding a figure of $146,250 to be paid by Mr Lankow to Ms Rose. This order is inconsistent with the reasonable expectations approach taken by prior decisions of this Court, which—in obiter—have quantified the claimant’s remedy by reference to the claimant’s contributions: Hayward v Giordani at p 149 (per Richardson J); 50

260  Mark Bennett

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Pasi v Kamana at p 607; Oliver v Bradley [1987] 1 NZLR 586 at p 589; Gillies v Keogh at pp 335 (per Cooke P) and 345–347 (per Richardson J); Phillips v Phillips [1993] 3 NZLR 159 at p 170–171 (per Cooke P). The approach of my colleagues in this case, particularly Hardie Boys J, McKay J and Tipping J, also looks to the claimant’s contributions as determining the quantification of the remedy. Approached on this basis, Ellis J’s approach to quantification was incorrect. As Hardie Boys J notes, the Judge took an asset-by-asset approach, and therefore found that because Mr Lankow placed so much store in his flats and company as his income-generating assets and effectively as his savings for the future, Ms Rose could not have a reasonable expectation of any interest in them. This is contrary to both the reasonable expectations approach applied by the Judge and the unjust enrichment approach I have applied, which require only that the contribution or enrichment show up in any of the defendant’s assets. Tipping J’s acceptance of indirect contributions is in effect the same as Hardie Boys J’s overall asset approach. The Judge should have simply identified the amount by which Ms Rose’s contributions exceeded the benefits that she received from Mr Lankow, and considered whether this excess can be said to have an effect on Mr Lankow’s holding of assets: that is the enrichment that should be restored. Despite my disagreement with the trial judge’s reasoning on quantification, this Court is prevented from making an alternative order on quantification, since neither party appealed this issue. The other Judges in this case have expressed the view that the trial judge’s assessment of a half share in the house and relevant chattels was not plainly wrong. This was in the context of rejecting any suggestion that a half share was too much. However, it seems to me that a half share in the house and chattels was too little, on either the reasonable expectations or unjust enrichment approach to quantification. Ms Rose contributed, it seems, most of the day-to-day expenses of the household, a figure that Hardie Boys J puts at at least $112,500; one year Mr Lankow also paid $5,200. Ms Rose also contributed around $30,000 to the building and furnishing of the house. In terms of services, she contributed an unspecified amount of work in her professional field to Mr Lankow’s company, as well as management services for his rental properties. Furthermore, for over eight years she attended to almost all of the domestic work within the household. Mr Lankow provided Ms Rose with accommodation (although by the time that their home was built she had contributed so much that she could regard it as a shared asset), contributions towards her cars, and some overseas holidays. Hardie Boys J is of the view that Mr Lankow’s contributions to Ms Rose were equivalent to Ms Rose’s domestic contributions. If we accept that, and remember that Ms Rose’s financial contributions of around $147,000 (by Hardie Boys J’s reckoning) are substantially restored by the half shares in the house and furniture that were awarded at trial, then the value of Ms Rose’s non-domestic work for Mr Lankow remains as an enrichment that is not restored by the trial judge’s order. This non-domestic work was professional services capably performed by Ms Rose, which were evidently required to improve the fortunes of Mr Lankow’s business or to provide him with more free time than he would otherwise have. These non-domestic services of Ms Rose’s would have to be valued in order to identify the payment that is necessary to reverse the enrichment, and it may be that her quantification of them at $7,000 per year is an appropriate amount.

Conclusion Applying unjust enrichment reasoning, it is clear that Ms Rose has a claim that Mr Lankow restore to her at least an amount equivalent to the half shares in the house and chattels awarded at trial and made more precise by Tipping J’s orders. Her domestic 50 and professional services and her financial payments were made within the context of an

Lankow v Rose—Judgment 261 intimate relationship in which the parties shared a household and planned for an indefinite future together. While Ms Rose did not at the time ask for any compensation for those contributions to Mr Lankow’s fortunes, in such circumstances it is wrong to regard such contributions as a gift. They are instead an enrichment which was freely accepted and which must be restored after the underlying reason for the enrichment—the shared life together 5 within the intimate relationship—no longer obtains. Although Ms Rose has a claim under the majority’s application of reasonable ­expectations, the unjust enrichment doctrine remains a means to deal with financial division at the end of de facto relationships. Further, unjust enrichment must be recognised by the courts if injustices are not to occur, in circumstances where a person has been enriched 10 but has made it clear that the contributor does not therefore gain an interest in certain items of their property; the enrichment will be restored as a personal claim against the enriched person. Our law has the resources within it to achieve justice in response to changing social circumstances and the unique nature of de facto relationships. For the above reasons, I would dismiss the appeal and would allow the cross-appeal, 15 and make the orders proposed by Tipping J. Appeal dismissed, cross-appeal allowed.

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15 Commentary on Director of Human Rights Proceedings v Goodrum The Challenge of Proving Discrimination in the Face of Bias and Gender Stereotyping GAYATHIRI GANESHAN AND SAM BOOKMAN

Introduction In New Zealand, discrimination claims can be brought under the Human Rights Act 1993 (NZ). This Act prohibits discrimination along certain stated grounds, one of which is sex. A person who feels they have been unfairly discriminated against can complain to the Human Rights Commission, which will first attempt to resolve the issue without going to court. In some cases, such as Director of Human Rights Proceedings v Goodrum and City and Country Real Estate Limited, preliminary dispute resolution may fail.1 The Commission’s Office of Human Rights Proceedings may then bring a claim to the Human Rights Review Tribunal for compensation or other remedies. In April 2002, the Tribunal considered the case of a woman (Ms A) who had been passed over for an auctioneer position at City and Country Real Estate (CCRE). The Tribunal considered whether sex discrimination by Ms A’s employer (Mr Goodrum) was the reason she was not considered for the auctioneer role.2 In doing so, the Tribunal accepted that the man who was appointed possessed essential qualities for an auctioneer. These included ‘a loud and deep voice, stature, height and the personal characteristics for which he was

1  Director of Human Rights Proceedings v Goodrum and City and Country Real Estate Limited [2002] NZHRRT 13 (full decision), (2003) 7 NZELC 96,934 (majority decision only). 2  The feminist judgment uses the phrase ‘sex discrimination’ to reflect the language used in the Human Rights Act, as well as the majority and minority decisions. The authors of this commentary consider ‘gender discrimination’ to be a more appropriate term. In current discourse, the term ‘sex’ is often used to refer to a person’s physiological characteristics, while ‘gender’ refers to a person’s social and psychological identity. Neither of these are binary qualities either (ie female or male; woman or man)—manifestations and expressions of sex and gender occur on a spectrum. See S Campbell, ‘Gender Trouble in the Human Rights Act 1993’ (2016) 3 Public Interest Law Journal of New Zealand 17; E McDonald, ‘Discrimination and Trans People: The Abandoned Proposal to Amend the Human Rights Act 1993’ (2007) 5 New Zealand Journal of Public and International Law 301.

266  Gayathiri Ganeshan and Sam Bookman regarded popular’.3 More generally—he had ‘the X factor’. The Tribunal did not consider that these qualities might be socially constructed or gendered. Although it accepted that ‘sex discrimination played a part’ in Ms A not getting the job, it did not find this discrimination to have been a significant and operative factor in the selection decision. One member of the three-person Tribunal, Leah Whiu (Ngāpuhi and Ngāti Hine) dissented. She found that Ms A’s sex did play an important role in the defendants’ conclusion that she lacked what they called the ‘X factor’. Perceptions of an auctioneer’s necessary attributes in terms of voice, stature, and presence ‘reflected the defendants’ view that the position of an auctioneer would be held by a man’.4 Accordingly, Leah Whiu found in favour of Ms A.5 The published decision of the Tribunal omits not only the text of this dissenting opinion, but all reference to the fact that one was given. Goodrum illustrates the difficulty in proving a claim of sex discrimination in employment. Discrimination can take many forms, and is often a result of unseen or unconscious bias. For example, the majority considered Ms A unqualified for the role of auctioneer. They took the following qualifications into account: ‘performance, team-playing ability, X factor, ability to take responsibility and being trusted by colleagues’.6 These characteristics do not immediately indicate that men would be preferred over women. However, scrutiny of these highly-desirable qualities (eg witnesses saying that the X factor comprises stature and a firm, authoritative voice) reveals that they are inherently masculine. CCRE’s construction of their ideal auctioneer candidate was therefore gendered, and demonstrated unconscious bias. A further difficulty in proving employment discrimination claims in court is that complainants must demonstrate that the disadvantage they experienced was ‘by reason of ’ their sex (or other protected characteristic). This can be extremely difficult to establish, particularly where an employer possesses more legal and material resources, or where there is no formal hiring process or records of decision-making. Decisions such as Goodrum make it clear that simply having anti-discrimination laws is not enough to prevent sex discrimination in employment. This decision did not attract media or academic commentary at the time. Yet, over time, routine sexism and stereotyping (similar to that displayed in the majority decision) have resulted in the persistent marginalisation of women and other groups within the labour market. This causes occupational segregation across the entire economy, and contributes to the clustering of women in lowerincome professions or roles.

Gender Stereotyping and Occupational Segregation Research carried out by the Ministry for Women has shown that the gender pay gap between men and women is about 12.71% and cannot be explained by observable characteristics (eg differences in occupation, industry, educational attainment).7 ‘[U]nobserved ­variables’

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Goodrum (majority decision) (n 1) 96, 946. Goodrum (full decision) (n 1) 73. 5 ibid. 6  Goodrum (majority decision) (n 1) 96, 945. 7  G Pacheco, C Li and B Cochrane, Empirical Evidence of the Gender Pay Gap in New Zealand (Wellington, Ministry for Women, 2017) 7. 4 

Director of Human Rights Proceedings v Goodrum—Commentary 267 such as bias and discrimination are responsible for around 64 to 84% of the gender pay gap.8 This gap also widens when examining the upper end of occupational hierarchies: at the 90th percentile of wages in New Zealand, none of the gender pay gap can be explained by any observable characteristics.9 Unconscious bias (sometimes called implicit bias) may well result in considerable employment disadvantage for women and other marginalised groups. It can manifest as wage discrimination—whereby men and women of equal productivity are paid­ unequally—or non-wage discrimination, where there is unequal access to jobs, training and promotion. Selene Mize’s decision focusses primarily on the issue of non-wage discrimination.10 One way this manifests is occupational segregation, which is the uneven distribution of people across and within occupations and jobs, based on demographic factors such as gender,11 class or race.12 This is a major contributor to pay inequity, with the Ministry for Women estimating that horizontal occupational segregation accounts for almost a third of the gender pay gap, as men are concentrated in higher-paying jobs and industries.13 In relation to auctioneering, evidence provided in Goodrum suggested that at the time of the decision the occupation was highly segregated by gender, without a single woman auctioneer in Auckland.14 The majority decision therefore had the effect of approving preexisting notions about what an auctioneer looks and sounds like, in an industry already dominated by men,15 and reinforced the idea that auctioneering is a profession for men. This stereotyping is not only damaging for women, but also for men who do not conform to gender stereotypes, and other groups who are not traditionally represented within a particular profession (eg people who are not Pākehā, those who do not conform to the expected gender expression of their assigned sex, those who have disabilities). Without further analysis, the majority simply stated that ‘those [X factor] attributes can go as much with women as they do with men’.16 In making this comment, the majority suggested that for a woman to succeed as an auctioneer, she is required to take on masculine attributes. The feminist judgment demonstrates that when such assumptions are challenged, a different legal conclusion may be reached.

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ibid 7. ibid 8. 10  P Hyman, Hopes Dashed? The Economics of Gender Equality (Wellington, Bridget Williams Books, 2017) 32. 11  In New Zealand, women are four times more likely to be employed in clerical and administrative roles than men, and more than twice as likely to work in the community and personal service industries. Even with more women being employed in professional roles, men are still more likely to occupy managerial positions than women. See P Borkin, Closing the Gender Gap: Plenty of Economic Upside (Auckland, Goldman Sachs, 2011) 6. See also Ministry of Women’s Affairs, The Status of Women in New Zealand 2002: The Fifth Report on New Zealand’s Progress on Implementing the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Wellington, Ministry of Women’s Affairs, 2002) 75, 76. 12  BR Bergmann, ‘The Economic Risks of Being a Housewife’ (1981) 71 The American Economic Review 81. 13  ‘Occupational segregation’ (Ministry for Women) www.women.govt.nz/work-skills/paid-and-unpaid-work/ occupational-segregation. 14  Goodrum (full decision) (n 1) 44. 15 In Australia, eg, fewer than 7% of auctioneers are women. See K Craze, ‘Women’s Big Bid to Change ­Auction Industry’ Sunday Telegraph (Sydney, 17 May 2015) www.news.com.au/national/nsw-act/womens-bigbid-to-change-auction-industry/news-story/de32541e07d64251ca79c1c19d69ffb1. 16  Goodrum (majority decision) (n 1) 96, 946. 9 

268  Gayathiri Ganeshan and Sam Bookman

Legal Barriers and Necessary Reform Selene Mize’s decision spends a considerable amount of time discussing the requirement that the hiring decision is ‘by reason of ’ a prohibited ground of discrimination. This is because this element, sometimes referred to as ‘causation’, can be one of the hardest elements to prove. This is particularly so where, as in this case, candidates are simply shoulder-tapped and there is no formal record of what factors were considered when the person was hired. In Goodrum, the Tribunal required Ms A to prove that her sex was ‘a substantial and operative factor’ in her not being promoted to the position of auctioneer.17 In the case of David McAlister v Air New Zealand Limited, decided since Goodrum, Tipping J of the Supreme Court commented that this standard for demonstrating causation was too high.18 In Ministry of Health v Atkinson, the Court of Appeal found that in the context of different legislation (the New Zealand Bill of Rights Act 1990), a claimant need only show that their characteristic was a ‘material ingredient’ in the making of the decision.19 This lower threshold could apply to the claimant in Goodrum if the claim were brought today,20 and Mize hints at this approach near the end of her decision. Even with a lower threshold for establishing causation, it remains difficult to prove that discrimination took place. Mize’s decision demonstrates how hard it was for Ms A to prove discrimination. Two changes to the law could make this easier. First, the threshold for causation between a discriminatory decision and negative treatment could be lowered further so that if discrimination on a prohibited ground such as sex or race played any role in an employment decision, then the employer would be in breach of the Human Rights Act. The precise scope of the role played by discrimination would then be relevant only to the appropriate level of damages: for example, if the discrimination did not result in monetary loss, the complainant could receive damages for injury to feelings, or a declaration from the court that discrimination occurred.21 This would send a strong message to employers that they need to take positive steps to avoid discriminatory practices, and to be aware of insidious factors such as unconscious bias and gender stereotypes. A second potential legal change is shifting the onus of proof from the claimant to the employer. In other words, once the claimant has proven facts that could lead a judge to infer that discrimination has taken place, it would then become the responsibility of the employer to prove that it did not. As the Ontario Court of Appeal has observed, employers ‘are uniquely positioned to know why they refused an application for a job … the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence’.22 This is also the approach

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Goodrum (majority decision) (n 1) 96,944. David McAlister v Air New Zealand Limited [2009] NZSC 78, [2010] 1 NZLR 153 [49]. 19  Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 [109]. 20 See Meulenbroek v Vision Antenna Systems Limited [2014] NZHRRT 51 [115]. 21  See the approach of US courts in ‘mixed-motive’ decisions: Desert Palace, Inc v Costa 539 US 90 (2003) and Fakete v Aetna Inc 308 F 3d 335 (3d Cir 2002); and the minority decision in University of Texas Southwestern Medical Center v Nassar 570 US (2013), 133 S. Ct. 2517. 22  Peel Law Association v Pieters (2013) ONCA 396, 363 DLR (4th) 598 [72]. 18 

Director of Human Rights Proceedings v Goodrum—Commentary 269 required by European Union law, and is used in the UK.23 Mize proposes a similar change in her feminist decision.

The Feminist Decision As an additional member of the Human Rights Review Tribunal, Selene Mize focuses on the claim that sex discrimination meant Ms A received less favourable opportunities for promotion. In doing so, she reaches a different conclusion to the majority: she finds that Ms A was qualified for work as an auctioneer, and that Mr Goodrum’s failure to offer her comparable opportunities for promotion was because of her sex. In doing so, she establishes that CCRE had a gendered notion of an auctioneer in mind, and that this prevented any serious consideration of Ms A for the auctioneer role. Mize’s observations fit with academic observations of unconscious bias. Prue Hyman, one of New Zealand’s leading feminist economists, has observed that unconscious bias often emerges automatically from everyday interactions.24 It may be a result of cultural beliefs, attitudes or stereotypes, or even judgements based on a woman’s dress. This is why Mize pays close attention to the observations of Mr Goodrum, and of the majority decision. She demonstrates how unconscious bias and gendered stereotypes factor into notions of being a ‘team player’ or having the ‘X factor’. Mize also shows how employment structures can allow for bias to creep into decision-making, such as through the absence of a formal, advertised recruitment process.

Bias in the Construction of ‘Team Player’ During the hearing, the Tribunal heard conflicting evidence about Ms A’s team-playing abilities. Witnesses for Mr Goodrum said that she was stand-offish and did not participate in social groups. On the other hand, Ms A’s current employer and previous colleagues noted that she was an active participant in team settings and worked collaboratively with others. For reasons known only to the majority, it accepted that Ms A was not a team player because she was not liked by Mr Goodrum and others at the firm. Prue Hyman, drawing on government studies, has pointed out that intangible attributes viewed favourably when possessed by men may be viewed as negative when possessed by women.25 In considering Ms A’s ability to be a team player, Mize points out the double standards commonly experienced by women and working mothers such as Ms A. She also demonstrates that women are judged harshly for exhibiting traits in the workplace that do not conform to gender norms.

23  See Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22; Igen Ltd v Wong [2005] EWCA Civ 142, [2005] ICR 931. 24 Hyman, Hopes Dashed? (n 10) 32. 25  ibid, citing Ministry of Women’s Affairs, Realising the Opportunity: Addressing New Zealand’s Leadership Pipeline by Attracting and Retaining Talented Women (Wellington, Ministry of Women’s Affairs, 2013) 3.

270  Gayathiri Ganeshan and Sam Bookman Mize makes it clear that the majority decision ignored the fact that it is hard to measure whether someone is a ‘team player’. Just because a person is not on your team does not mean they are not a team player.26 The majority decision played into patriarchal notions of there being a single, dominant team identity and culture. This type of attitude hinders diversity in the workplace—it expects people of different backgrounds to participate in a monolithic office culture that may be stifling and exclusive. It can also be particularly stifling for women of colour and other people who live in the intersection of multiple oppressions, and who deviate from the dominant team identity on multiple levels.

Bias in the Construction of ‘X Factor’ In their decision, the majority of the Tribunal accepted that Ms A did not possess ‘the X factor’ thought to be necessary to be an auctioneer. This is an undefined trait, which is vaguely described in the majority decision as the ability to engender audience respect and call auctions with confidence. Some witnesses linked this ‘X factor’ to physical stature and having a commanding voice. In her feminist judgment, Mize demonstrates how qualities based on stature and voice are inherently gendered. She also queries the link between ‘X factor’ and success as an auctioneer. She therefore demonstrates the potential for gendered stereotypes and assumptions to creep into employment decisions, and why hard-to-define traits such as ‘X factor’ should be scrutinised.

Conclusion Selene Mize’s judgment is an important example of what can be achieved through a thorough, critical feminist examination of a hiring decision. She scrutinises the reasons for the d ­ ecision—such as X factor and teamwork—and exposes how they rely on gendered assumptions. She examines the legal tests, such as those relating to causation, and proposes effective solutions to assist complainants. Employment discrimination is not always blatant. It is often insidious and the result of unconscious bias. It can arise from preconceptions about what a certain profession has traditionally looked like, without pause for critical reflection. As the decisions of Selene Mize and Leah Whiu demonstrate, the facts in Goodrum can be interpreted in this way. A feminist perspective is therefore not just necessary in the most ground-breaking cases—it must also permeate the everyday business of courts and tribunals.

26  See further the discussion of ‘teamwork’ in B Metcalfe and A Linstead, ‘Gendering Teamwork: Re-writing the Feminine’ (2003) 10 Gender, Work and Organization 94.

Decision No. 13/2002 Reference No. CRT 36/2001 IN THE MATTER of the Human Rights Act 1993 BETWEEN DIRECTOR OF HUMAN RIGHTS PROCEEDINGS Plaintiff AND JOHN GEORGE GOODRUM First Defendant AND CITY and COUNTRY REAL ESTATE LIMITED Second Defendant BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL S R Sage—Chairperson G J Cook—Member L Whiu—Member S Mize—Member HEARING at Auckland on 14, 15 March and 12 April 2002 APPEARANCES C Lawrence for plaintiff W Woodd for first and second defendants MINORITY DECISION I have had the benefit of reading in draft form the majority decision of the Human Rights Review Tribunal. I agree with the findings and orders made regarding the second cause of action, victimisation. I disagree with the finding of the majority on the first cause of action, discrimination. I have also had the benefit of reading in draft the minority decision of Leah Whiu. She concludes that the plaintiff was discriminated against, and I agree with her decision and her reasoning. I write separately to emphasise somewhat different factors, and

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to encourage consideration of a new approach to interpreting the Human Rights Act 1993. BACKGROUND City and Country Real Estate Ltd (CCRE), a franchisee of Allens Group Ltd (Allens), decided that it needed a new auctioneer. Management did not advertise the position within the agency, nor did it ask either of the existing employees who had trained and were licensed as auctioneers, if they were interested in the position. Both of these employees were female. Instead, management approached a current male employee, Mr Hendriks, who agreed to accept the position and train as an auctioneer. Ms A, one of the female employees with training as an auctioneer, complained to the Human Rights Commission that she was discriminated against on the ground of her sex. Management denies discriminating and maintains that Mr Hendriks was appointed because he was the best person (possibly expressed as the “best man”) for the job. The Director of Human Rights Proceedings brought this action on Ms A’s behalf. Mr Goodrum, the owner and managing director of CCRE, is the first defendant and CCRE is the second defendant in this action. THE LAW The Human Rights Act 1993 provides in relevant part: 22 Employment—(1) Where an applicant for employment or an ­employee is ­qualified for work of any description, it shall be unlawful for an e­ mployer, or any person acting or purporting to act on behalf of an employer,— (a) to refuse or omit to employ the applicant on work of that­ description which is available; or (b) to offer or afford the applicant or the employee less favourable … opportunities for … promotion, and transfer than are made ­ available to applicants or employees of the same or substantially similar capabilities … by reason of any of the prohibited grounds of discrimination. Sex is a prohibited ground of discrimination under s.21(1)(a) of the Act. The legislation is mostly silent with respect to the onus of proof. The Act only specifies the onus for exceptions (s.92F places this onus on the defendant), but the practice of the Tribunal has been to follow Parr v Broadcasting Corporation of NZ (1987) 1 NZELC 78-102 and to place the onus on the complainant of proving all essential elements of the case.

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There are three factors that must be considered in applying s.22(1)(b): first, whether the complainant was qualified for work as an auctioneer; secondly, whether she was given less favourable opportunities for promotion than were offered to other similar employees; and thirdly, whether any failure to give her equivalent opportunities was by reason of her sex. Each of these factors will be considered in turn. FINDINGS Was Ms A qualified for work as an auctioneer? To be qualified for work is to possess the skills, experience and attributes needed to do a satisfactory job. A satisfactory job is not the same thing as the best possible job. The fact that there may be a superior candidate does not render other candidates “unqualified” because qualification is measured by the nature of the job, not by a competitive determination of who would be the best fit for the position. In relevant cases, qualifications may include personality attributes such as a willingness to give and take constructive criticism. Qualification depends mostly on the presence of desirable c­ haracteristics, but the presence of undesirable characteristics in an otherwise qualified candidate could render them unqualified for a particular position. For example, having a very short temper could disqualify a person from a job dealing with the public. It is easy to identify gender-neutral terms that could be used to describe successful auctioneering. For example: persuasiveness at selling the option of auctioning a property (if this will be done by the auctioneer instead of the listing agent); verbal fluency; a voice that is easy to hear and understand; an ability to pick up and remember bids called out from different places around the room; and skill at cajoling interested buyers to increase their bids. A number of alleged negative attributes of Ms A were mentioned in the evidence as substantiating that she was not “qualified”. As they bear more on the reasons that Ms A was not offered the position of auctioneer than on her qualifications, these will be considered below under the heading of whether any failure to give her equivalent opportunities was by reason of her sex. Ms A took an auctioneer’s training course run by Allens in 1997. A letter introduced into evidence by the defendants indicated that she had attended this course, but did not meet the standard required to become an Allens accredited auctioneer. This was not conveyed to Ms A at the time. Ms A believed that she had passed the course, and purchased an auctioneer’s licence after taking it. In assessing Ms A’s qualifications, no weight can be placed on her alleged failure to pass the course. First, no evidence dating from the time of the course has been introduced to show that she did not pass. The letter was written three years later, after Ms A had left CCRE and the Human Rights Commission had

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begun its investigation following her complaint. Secondly, the letter gave no reason why Ms A had allegedly failed the course. Thirdly, prior training was not considered to be a necessary qualification for the position. It is undisputed that the person eventually hired as auctioneer, Mr Hendriks, had no training. I find several factors persuasive in showing that Ms A was qualified to be an auctioneer. First, she was highly successful as a real estate agent (she was rated in the top 2% nationally at Allens and made an average of $160,000 per annum over a period of three years). Some of the skills of a successful estate agent, such as persuading vendors to list their property and potential sellers to actively pursue purchase of the property, would be similarly beneficial for auctioneers. Secondly, Ms A’s current employer, Mr Teague, gave evidence that he considered that she would be an excellent auctioneer and had the necessary negotiating and people skills. In fact, he had offered her a position as branch auctioneer. The s­ trongest evidence in support, however, is the fact that even the first defendant, Mr Goodrum, ­considered Ms A to be qualified: his evidence was that he told her that she could help out if Mr Hendriks could not handle the auctioneering workload. Was Ms A afforded less favourable opportunities for promotion than were afforded to other, similar employees? Ms A was not given an opportunity to apply for the position of auctioneer. The position was not advertised, either externally or internally. Rather than asking those interested to apply for the position, management relied upon themselves to identify who might be suitable. If a vacancy is not going to be advertised, it is important that the employer give fair consideration to every potential person to fill the job. Mr Goodrum contended that this happened, but there are a number of reasons that his evidence is not convincing. First, there were no notes in the minutes of the monthly management meetings or any other record made at the time that could substantiate his contention that Ms A was considered for the position. Secondly, his report of events changed. While he asserted in evidence that every one of 70 employees was given careful consideration, in his letter to the Human Rights Commission he stated that because of her alleged inability to work as a team player, Ms A was “never even a consideration”. Finally, Mr Goodrum’s evidence was directly contradicted by other witnesses for the defendants. A real estate sales manager at the New Lynn office who was present, Mr ­Voordouw, gave evidence that only three p­ eople were discussed, on multiple occasions, for the auctioneering position— Mr Hendriks, Ms A and the other female employee who was a licensed ­auctioneer. Mr Voordouw was unable to recall when these discussions took place or how long the discussions lasted, however, and he was unable to explain the discrepancy between his evidence and that of other witnesses for the defendants.

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Mr Cullington, the sales manager at the Westgate office, was present at all the management meetings where appointing a new auctioneer was discussed. His evidence was that he was the one to ­suggest Mr Hendriks for the position, and that Ms A was not considered for this position at all. She may have been discussed as a possible procurer, but not as an auctioneer. Mr C ­ ullington was a convincing witness who did not overstate or change his evidence. I conclude that Ms A was not considered for the position and thus was afforded less favourable opportunities for promotion than Mr Hendriks. The Tribunal is unanimous on this point. Was the failure to afford Ms A comparable opportunities for promotion “by reason of” her sex? Ms A was qualified for the position of auctioneer and she was afforded less favourable opportunities than were other employees of similar, or less, capabilities. In order to obtain relief, however, Ms A must also establish that she was treated in this fashion by reason of her sex. This issue is the most contentious in this case. Addressing it will involve reviewing the relevant law; the impact of the process adopted by the defendants; the evidence supporting the defendants’ contentions that the decision not to promote Ms A was due to factors other than her gender; and the evidence that her gender played a central role in the defendants’ decision-making. a) The meaning of “by reason of” A failure to afford an employee the same opportunities as others does not run afoul of the Human Rights Act unless that failure is “by reason of” a prohibited ground. The Act does not define that phrase. The identical phrase in the legislation preceding the Act was first interpreted in Human Rights Commission v Eric Sides Motors Co Ltd [1980] 2 NZAR 447 at 457 to require that the prohibited ground was a “substantial and operative factor” in the relevant treatment. A substantial factor is one that is significant, not trivial. An operative factor is one that is not inconsequential—one that bears on the actions taken by the defendants. The plaintiff will need to establish that her sex was a significant factor that had an impact on the defendants’ failure to consider her for the position. b) The impact of the process adopted by the defendants CCRE had no criteria for being successful as an auctioneer. This is unfortunate. ­Written ­criteria make it easier for management to consider objectively whether each possible ­candidate possesses the necessary skills, experience and attributes for the position. CCRE followed no set process in choosing a new ­auctioneer. Had the opening for an auctioneer been advertised, at least internally, Ms A would have been able to apply. She would have had an opportunity

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to comment upon potential objections to her suitability and perhaps to give a demonstration of her auctioning skills, which would have provided concrete evidence of her abilities. Instead, she was given no reasonable opportunity to make her interest in being appointed as an auctioneer known and to demonstrate her suitability for the position. Having a fair and transparent process for making employment decisions is essential. The purpose of the Human Rights Act is to hold employers accountable if they discriminate on prohibited grounds. Decision-making with no job criteria, no accepted process, no notification of the vacant position and no written records on the reasons why the successful applicant was selected makes it difficult to keep employers accountable. A fair and transparent process also may assist employers in demonstrating their compliance with the requirements of the anti-discrimination legislation, and serve as a protection for the employer against mistaken or baseless claims of discrimination. Operative bias can found a claim under the Act. The Act does not require an intention to discriminate; it is enough if the employer fails to give a qualified employee equivalent opportunities for promotion by reason of a prohibited ground. The appointment process that was used here—in essence, shouldertapping—magnifies the possibility of bias having an operative effect. Bias is often subconscious, and can be a reason for failing to appreciate that women might be interested in promotion to a male-dominated position such as auctioneer. People who do not fit the typical image or profile of an auctioneer, a job that is heavily male-dominated, might be entirely overlooked for consideration, and this is unacceptable. A transparent process that permits individuals to register their interest greatly lessens this risk. c) Evidence that Ms A was not afforded equal opportunities for promotion for reasons other than her sex A number of alleged negative attributes of Ms A were mentioned in the evidence as explicitly or implicitly justifying the decision not to offer her the position of auctioneer. The primary allegations were first, that she was “standoffish” and not a “team player”, and secondly, that she lacked the “X factor”. It was also pointed out that she was not trusted and not well liked. The defendants maintain that these were reasons that she was not promoted and that they are independent of gender, thus any failure to afford equal opportunities to Ms A was not by reason of her sex and so she is not entitled to relief under the Act. While a certain degree of deference should be given to management’s views on necessary or desirable attributes for a position, an uncritical acceptance of them would run counter to the objects of the Act. Qualifications must be ­gender-neutral, and cannot operate as a smokescreen for biased attitudes and

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evaluations. A focus on personality and imprecise and vague job criteria ­present a heightened risk of this happening. i) The quality of “being a team player” Several witnesses for the defendants indicated that being a “team player” was essential for auctioneers. Mr Cullington gave evidence that it was the most important part (as high as 40%) of being an auctioneer. He indicated that this was because the auctioneer needed to get feedback and support from colleagues. Mr Goodrum gave evidence that being a team player was essential, but his definition of being a team player seemed somewhat ­confused, as he described a team player as someone who was “able to go and procure ­auctions, who could physically stand and call an auction, secure auctions and market homes”. This description lacks an obvious team aspect. Further, Mr Goodrum was clear that he did not regard Ms A as a team player, but he did not indicate how she failed to measure up to this description. His other comment relevant to being a team player was that it is essential that the other sales people trust the auctioneer. The record is very light with respect to actions taken by Ms A that should legitimately lead to a finding that she was not a team player and thus an inappropriate person to be the new auctioneer. Much of the defendants’ evidence was somewhat vague and impressionistic. For example, Mrs Cullington (one of the CCRE managers) gave evidence that the complainant was uncooperative, stand-offish and unapproachable, but during cross-examination she indicated that there had been no unpleasantness between herself and Ms A, and that she had only worked with her for a few months. Her evidence seems to be based on her general impressions of Ms A’s experiences with other people in the office. Mrs Cullington also said that she “can’t recall” Ms A joining in with caravans to view listings, but Ms A’s evidence was that she joined in every time. Witnesses for the defendants undercut some of the the specific allegations that Ms A was not a team player. Mr Voordouw gave two examples of her alleged lack of team playing. The first involved Ms A accepting a commission after showing potential buyers around a property (they showed up at the property while she happened to be there). Mr Voordouw then said that he did not blame her for that, as the referring agent was lazy and should have shown the buyers the property instead of just sending them to look around on their own. The second example involved Ms A presenting an offer on behalf of interested purchasers after another agent told her to back off as there was already an informal (unenforceable) agreement to sell to someone else. Mr Voordouw indicated that he considered Ms A’s behaviour to be appropriate in this instance also.

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In office dynamics, there are two potential focuses: an employee’s behaviour, and the way that employee is viewed by others. Where the employee’s behaviour itself is problematic, that can render them unqualified for a position, and mean that failing to promote them was for a legitimate and non-discriminatory­ reason. As detailed above, the evidence that Ms A’s own behaviour was not that of a team player was weak. Other allegations, for example that Ms A tried to prevent other estate agents from selling her listings, were specifically refuted by Ms A. The defendants’ arguments regarding how to be a team player referenced being trusted and supported by co-workers, which reflects the second focus. There are risks involved with too great a reliance on the second focus, however, as it is at least possible that the way in which the other employees perceived Ms A might have stemmed from their own biases, rather than anything which Ms A did wrong. Women may be judged more harshly when exhibiting the same behaviour that a man might exhibit, especially when that behaviour conflicts with stereotypes such as that women are nicer, and more caring and cooperative. Women in leadership positions may run afoul of societal expectations and face particularly strong bias. Ms A had a high level of success as a real estate agent. The question must be raised whether, had she been a man, Ms A would have been similarly criticised. Ms A stated that she found what she described as the male culture of the office ­difficult, and that the office was organised in a way that did not take account of employees with family responsibilities. She did not participate in the smokers’ group, nor did she attend breakfast meetings that took place during the school holidays, due to her childcare r­esponsibilities. Ms A accepted that she focused on work more than socialising when she was in the office. Nevertheless, she maintained that she was very professional and also joined in with work activities. Much of the team player evidence seems to be linked to whether Ms A was well liked. A job is not a popularity contest. Personality and personal behaviour does and should have a place in employment decision-making, but there is a difference between factors such as being disrespectful, disagreeable or harshly critical of others, and being “stand-offish”. The Human Rights Act demands a tolerance for diversity. If it is considered legitimate to fail to promote someone because they do not socialise with workmates, and engage in ­behaviour that is interpreted as “stand-offish”, that would frustrate diversity because such a situation is far more likely to occur when people from different backgrounds work together. An individual who does not smoke or drink coffee or tea, for example, might not feel comfortable in certain environments. Further, while some teams might welcome newcomers, others might be fairly insular and hard to break into, again making it potentially unfair to penalise a worker for not being a team player.

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ii) The quality of “having the X factor” Employers should know the requirements of the position and be able to state them with some degree of precision. Vague, ambiguous attributes are not satisfactory for descriptions of necessary qualifications for a job. The defendants argued that the auctioneering job requires “presence” and “having the X ­factor”. Not only are these extremely vague, they are also gendered concepts. Mr Voordouw’s evidence included a discussion of the factors that were important for an auctioneer. He mentioned “presence”, and said that it was important that the auctioneer did not need to call for attention, but was looked to automatically, and that this amounted to being ready to do the business. He did not give any specific reasons why Ms A lacked these attributes. Mr Cullington’s evidence was that an important part (30%) of being an auctioneer was having “stature”, also called the “X factor”. He said that he was not sure that Ms A would have had the voice and stature, and that the auctioneer must be “powerful looking”. He said that this did not depend on size, but that it engendered the respect of the audience and gave people confidence. He also referred to an authoritative voice. It is important to disentangle people’s perceptions of the attributes of auctioneers that they have seen and can readily call to mind (the stereotypical auctioneer) from the qualities that directly feed into being successful as an auctioneer. It is unclear how stature and authoritativeness are linked to successfully calling an auction. It is difficult to believe that people would fail to bid on a desirable house if unimpressed by the stature of the auctioneer. The task of the auctioneer is to entice higher bids, but it is not clear that this comes primarily from authoritativeness, as there are other forms of persuasiveness. Ms A’s success as a real estate agent strongly suggests that she is persuasive. Given the ease of constructing gender-neutral criteria for successful auctioneering, as mentioned earlier, it is disconcerting that so many of the factors asserted by witnesses for the defendants to be important for successful auctioneering can be seen as subjective and gendered. Despite the witnesses’ statements that these concepts are not sex-specific, it is clear that they are highly gendered concepts. Stature is frequently equated with height, which tends to vary with gender, as does voice. In our culture, women are certainly less likely to be described as “powerful looking”. iii) Weaknesses in the defendants’ case for factors other than sex The defendants’ case was challenged by Ms A and other witnesses. She left CCRE following the decision to appoint Mr Hendriks, and now works as a real estate agent for Mr Teague. Mr Teague has known Ms A for five years, and worked with her at the Henderson office of CCRE as well as in her current

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employment. Contrary to the evidence of the defendants that Ms A was not a team player and lacked the X factor, Mr Teague gave evidence that she was amicable, friendly, a valued team member and an excellent negotiator who worked well with other agents and was well-liked by them. Previous employers and other associates also gave evidence supporting Ms A. Other weaknesses in the defendants’ case that Ms A was considered unsuitable for the position because of valid factors other than her sex include that there is little evidence that any of these factors was determinative at the time the decision was made. Mr Goodrum admitted to not having a complete recollection of any discussion of Ms A at the management meeting and conceded that there were no written notes as to why she was thought to be unsuitable. Neither Ms A’s nor Mr Goodrum’s evidence about their meeting following the announcement of Mr Hendriks’ appointment includes factors such as being a team player or having the X factor as having been discussed at that time. Some of the evidence, for example the letter that alleged Ms A had not passed the auctioneers’ training course, was clearly constructed a long time later, presumably with the litigation in mind. Further, none of the justifications offered by the defendants as to why Ms A was considered unsuitable amounts to a credible reason for the failure to consider her at all. To found a claim under s.22(1)(b) of the Act, she need only show that she was offered less favourable opportunities for promotion than were made available to employees of the same or substantially similar capabilities by reason of her sex. She is not required to show that she was not promoted by reason of her sex. The factors contended for by the defendants would need to be much more probative and powerful than they are to justify failing to consider her at all. For all of these reasons, I find the defendants’ case that the reason Ms A was treated differently was because of factors other than her sex to be very weak. d) Evidence that her sex was a reason that Ms A was not afforded equal opportunities for promotion Evidence in the record lends some support to sex being an important reason that Ms A was not afforded equal opportunities. On its own, this evidence is not sufficient for a finding that sex was a substantial and operative factor. Combined with other evidence and deficiencies in the defendants’ case, however, it is more probative. This evidence shows that the defendants were looking either for a man or for someone with masculine qualities. The only individual who was considered for the position was an untrained man. The two female licensed auctioneers were not considered for the vacancy at

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all. Mr Teague gave evidence that at the time there were over 100 auctioneers in the Auckland area and none were women. Auctioneering was considered to be a masculine role. Mr Goodrum even expressed surprise at hearing that Ms A was interested in calling auctions. There was also evidence that a masculine (“blokey”) culture prevailed at CCRE. Ms A gave evidence that sexism was prevalent in the real estate business and that sexist comments would be made regularly about such things as certain tasks being “women’s work”. She said that women were given preferential treatment if they had what might be described as male attributes. The use of gender-specific language also tends to suggest that it was expected that the auctioneer would be a man. Ms A maintained that Mr ­Goodrum told her that Mr Hendriks was the “best man” for the job and, while Mr Goodrum said that he did not mean anything by that, he did not deny saying it. Similarly, the minutes of a CCRE managers’ meeting, held months before the meeting during which Mr Hendriks was selected, refer to a new auctioneer using “he” and “him”. The Chairperson of the Tribunal questioned Mr Goodrum about this language during the hearing, saying “It looks like you’re looking for a man. Was that your thinking that it would be a man?” and Mr Goodrum replied “The probability was that it would be a man. I don’t know of any lady auctioneers but that doesn’t preclude them.” Mr Cullington similarly used male pronouns when he gave evidence concerning the c­ haracteristics of successful auctioneers. Mr Goodrum testified that gender was irrelevant to the selection of a new auctioneer. It is very possible, however—even likely—for decision-makers to be biased against groups such as women and racial minorities without being aware of it. Unconscious bias that can lead to discrimination in violation of the Act as an intent to discriminate is not required—it is the fact of differential treatment that the Act prohibits, not intentional discrimination. The gender-specific language, combined with the use of gendered factors (such as the need for height, stature, a deep and authoritative voice and to be powerful looking, as discussed above) in defining job qualifications, strengthen the perception that bias was present in this case. Perhaps most importantly, being too feminine was seen as incompatible with successful auctioneering by the people running the Allens course. Ms A’s evidence was that she was told by the head of the auctioneers’ department at Allens during the course that her stance and the way she called auctions were “too feminine”. Another director also said that she was too feminine. In response, she asked for a copy of the criteria for being an auctioneer but was told that there were no written criteria. CCRE is a franchisee of Allens and they have a close relationship. Although the Allens men who had criticised

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Ms A were not employees of CCRE, they were closely involved with CCRE and were mentioned by name in the CCRE minutes in connection with the search for a new auctioneer. Femininity is an invalid reason for viewing someone as unqualified. The Concise Oxford Dictionary defines feminine as “of women; womanly”. It is clearly a proxy for sex, which is a prohibited ground of discrimination. The only circumstances in which it is ­permissible to treat an employee differently by reason of their sex are listed in the ­exceptions (ss.24–35) of the Act, and none is relevant to this situation. e) Conclusion as to the reason that Ms A was not afforded equal opportunities The process used in filling the vacancy lacked transparency and prevented Ms A from being able to address her suitability for the position. The factors alleged by the defendants to be the reasons that Ms A was not considered for the position—especially her not being a team player and not having the X ­factor—are not persuasive and display gender bias. Evidence showing that sex was an important factor in the events as they unfolded included: the failure to even consider qualified women for the vacancy; the use of gender-specific language in describing auctioneers; the surprise that Ms A was interested in calling auctions and other indications that it was expected that a man would be appointed; and the fact that the men running the Allens auctioneering course viewed femininity as incompatible with s­ uccessful auctioneering. I conclude that Ms A’s sex was a substantial and operative factor in the decision not to consider her for the auctioneering position. For these reasons, I find that the failure to afford Ms A equivalent promotion opportunities was by reason of her sex. Looking to the future—evolution of the “by reason of” requirement As I mentioned above, the Human Rights Act does not define “by reason of” or specify who bears the onus of proving that a challenged action was by reason of a prohibited ground. This leaves open the possibility of the Tribunal changing its approach to these issues. Human rights legislation must be accorded a fair, large and liberal interpretation, rather than a literal or technical one.1 While unnecessary in this case, as I find that the plaintiff has established that her sex was a substantial and operative factor in the failure to afford her equal opportunities, in my view the time has come for the Tribunal to change its approach to the “by reason of” requirement in two ways.

1 

Coburn v Human Rights Commission [1994] 3 NZLR 323, 333.

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First, the most appropriate interpretation of “by reason of” is whether the prohibited ground was part of the decision-making. In the absence of a valid exception, the Act declares that the prohibited grounds are irrelevant—they are inappropriate factors to take into account or to play any role. It is often the case that many factors contribute to the making of employment decisions. If there is persuasive evidence that an employer is taking race, sex or any other prohibited ground into account inappropriately in deciding whom to hire, it should not matter if there also happens to be another reason why a particular applicant was not hired. If this approach to “by reason of” was to be taken, there would be actionable discrimination if any part of the decision-making process was affected by a prohibited ground, even if it did not reach the level of a “substantial and operative factor”. In my view, the substantial and operative factor test first introduced in New Zealand in Eric Sides should no longer be followed. In that case, the employer failed to hire an applicant who both had a spotty employment record and was also not a “keen Christian” in the employer’s opinion. The Tribunal held that the religious aspect could not be a substantial and operative factor in the decision not to employ the applicant, even though it was overtly expressed as being very important to the employer, because the employment record also disqualified the applicant for the position. The Tribunal held that the claimed discrimination was not made out. Under the approach I advocate, bringing religion into the decision-making process would have been sufficient to warrant a remedy under the Act, regardless of the presence of other influential factors such as employment history. While the prohibited ground could be said not to have had the opportunity to have a deleterious impact on the plaintiff in such a case (as he would not have been hired regardless), the employer has nevertheless behaved wrongfully and the plaintiff should be entitled to a remedy of declaratory and/or injunctive relief. (Compensatory damages would presumably not follow in a case where the discriminatory consideration had no practical or pecuniary impact on the plaintiff.) Taking this approach would be in harmony with s.23 and s.67 of the Act. Section 23 makes it unlawful for a person to use a form for employment applications that could r­ easonably be understood as indicating an intent to commit a breach of s.22 (for example, an employment application that asked a person’s religion where religion was irrelevant to the position, or stated “Catholics need not apply”). This is an offence even if the form had no effect on employment decisions that were made because all applicants were Protestants or atheists. Section 67 similarly makes it unlawful to advertise in a way that could be understood to indicate an intention to breach the Act, even if the advertisement has no effect on employment decisions.

284  Selene Mize

Secondly, the Tribunal should adopt a policy of reversing the onus of proof after a plaintiff establishes unequal treatment and no longer follow Parr v Broadcasting ­Corporation of NZ. Once a plaintiff shows that they were not treated in the same way as other employees or applicants, the onus of proof should shift to the employer to show that the unequal treatment was by reason of something other than a prohibited ground of discrimination in s.21. This change is desirable because of the difficulty a plaintiff has in proving discrimination. For example, the true reasons for an employment decision may only be held in an employer’s thought processes (which are obviously not accessible to plaintiffs). Even if this is not the case, it will always be true that the employer has more knowledge of the employment decision and more ready access to all of the relevant information. Accountability is another justification for reversing the onus of proof. A reversed onus would encourage employers to use an appropriate process and defensible, non-­discriminatory factors in decision-making, in case they were later required to justify their decisions. If a plaintiff establishes a prima facie case by showing that he or she was treated differently than other applicants or employees, it should not be too difficult for the employer to demonstrate that there was a non-discriminatory basis for that treatment, if that were the case. If the onus were on the plaintiff, on the other hand, in most cases the employer would not need to justify the employment decisions that were made, but could defend the case simply by holding the plaintiff to the burden of establishing all the elements of the claim. The approach of reversing the onus would be analogous to that taken by the indirect discrimination provision of the Act, s.65. Indirect discrimination focuses on superficially neutral practices that have a disproportionate negative effect on individuals or groups defined by a prohibited ground of discrimination. Section 65 provides that once a practice has the effect of treating a person or group differently on a prohibited ground of discrimination, the person whose conduct or practice is at issue must establish good reason for it. It could be argued that s.65 merely follows the practice in the Act of making defendants prove exceptions (s.92F), but in effect it is more similar to the present question as it focuses on the existence of good reasons for a practice that has a disproportionate effect on particular groups. Good reason may point to factors that are similar to exceptions, but it also requires a focus on the reason for the practice—if there was a discriminatory purpose (i.e., to deliberately disadvantage a particular group rather than for a neutral business reason) then it cannot be justified. Defendants bear the burden of proving good reason. Reversing the onus would bring New Zealand into conformity with a number of other jurisdictions that have similar rules in place. For example, s.11 of the Employment Equity Act 1998 (South Africa) states: “Whenever unfair

Director of Human Rights Proceedings v Goodrum—Judgment 285

discrimination is alleged in terms of this Act, the employer against whom the allegation is made must establish that it is fair.” In Enderby v Frenchay Health Authority (1992) C-127/92, the European Court of Justice held that where a female employee establishes that she is paid less than comparable male employees, the burden of proof shifts to the employer to account for the pay difference by reasons unrelated to sex. The Court held: “where there is a prima facie case of discrimination, it is for the employer to show that there are objective and non-discriminatory reasons for the difference in pay” [para 18]. European Union Council Directive 97/80/EC of 15 December 1997 with regard to sex discrimination and European Union Council D ­ irective 2000/43/EC of 29 June 2000 with regard to discrimination on race or ethnic origin further provide for a reversed onus. Article 4 of Directive 97/80/EC provides that: Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. CONCLUSION The evidence presented establishes that Ms A was not afforded equivalent opportunities for promotion to a position for which she was qualified, as were given to other similar employees, and that it was by reason of her sex. Thus, I would find that the defendants have breached s. 22(1)(b) of the Human Rights Act 1993. DATED at Hamilton this 4th day of November 2002 S Mize Member

286 

16 Commentary on Air Nelson Limited v C She Said, He Said: From Myth to Reality ANNICK MASSELOT

Introduction Air Nelson Limited v C1 is about the dismissal of an airline pilot (C)2 who had been accused of sexual harassment. C, a male flight officer (FO) and female flight attendant (FA) made an unscheduled overnight layover in Napier as a result of adverse weather conditions. The three employees of Air Nelson Limited (ANL) were required to stay in a hotel until the rescheduled flight time the next day. On their way to the hotel, they stopped at a supermarket, where the male employees purchased alcohol. At the hotel, they changed into hotel robes because they did not have any overnight clothing. All three then consumed alcohol in C’s bedroom between 10pm and 11.30pm. After FO had left the room, sometime between 11.30pm and 4am, C and FA had sexual intercourse. Although she could not remember the sexual acts, FA believed that she would not have had sex willingly with either C or FO. FA left C’s room at 4am. She then went to her room where she had a shower and called a friend to pick her up. She appeared distraught and under the influence of alcohol. She alleged rape to the police, who investigated but the claim was eventually dismissed. In addition, she made a complaint against C to ANL for sexual harassment. The employer’s initial attempt to investigate C and FO’s conduct during the layover was delayed by the police investigation. The employer’s investigation of C’s conduct dealt with four issues that ultimately contributed to its findings of serious misconduct and dismissal: (1) the purchase and consumption of alcohol at the company-provided hotel; (2) the breach of company policy regarding alcohol consumption before a period of duty;

1 

Air Nelson v C [2011] NZCA 466, 8 NZELR 453. the original judgment, all parties, except for the employer, were granted interim name suppression. The feminist judges explored the possibility of allocating pseudonyms to the parties in order to prevent dehumanisation often resulting from allocating letters. They rejected this option because they felt that the exercise was contrived and that no Employment Court would proceed in this manner. 2  In

288  Annick Masselot (3) the allegation of sexual harassment; and (4) the overall responsibility of a captain employed by ANL. During the employer’s investigation, C was stood down from flying and then suspended. Following the investigation, C was dismissed. As a result, C raised a personal grievance against ANL, which remained unresolved between the parties. This was followed by an unsuccessful application to the Employment Relations Authority (Authority) for unjustified dismissal. C appealed this decision to the Employment Court, which considered ANL’s investigation to determine the fairness and reasonableness of the dismissal process.

The Employment Court’s Decision In the Employment Court, Perkins J considered whether C’s dismissal was justified and whether ANL had acted in a fair and reasonable manner as required under s 103A of the Employment Relations Act 2000 (NZ).3 He found that the employer conducted adequate procedures with regard to the investigation and the time given to the parties. Nevertheless, he concluded that C’s dismissal was substantially unjustified because: the employer’s investigator, Mr Hambleton had approached the enquiry with a closed mind;4 there was no proper evidential basis on which to reach a view that dismissal was warranted;5 and Mr Hambleton therefore made his decision on unfounded and unreasonable bases. Specifically, Perkins J found that C’s dismissal was unjustified on the following grounds: (1) In relation to the purchase and consumption of alcohol, the employer’s investigation into the pilot’s conduct was unreasonable. Mr Hambleton was admonished for being too “picky”. Among other things, he had investigated the size of the hotel’s wine glasses to determine ­alcohol consumption, which Perkins J considered unnecessary.6 Moreover, the employer’s investigation was criticised for not considering the plaintiff ’s experts’ opinion, which found that the amount of alcohol consumed would have been out of the plaintiff ’s system by morning when he was due to fly again. This would have indicated that C had not indulged in excessive drinking. (2) In terms of the allegation of sexual harassment, Mr Hambleton speculated about the alleged rape and/or sexual harassment. Perkins J made numerous sexist and at times contradictory assumptions about FA. In particular, he concluded that FA must have consumed a larger amount of alcohol compared to C or FO.7 He also concluded that although FA might have been drunk, she would not have been unconscious, especially at the material time of the alleged rape/sexual harassment, and that she did not drink enough to suffer memory loss.8 Perkins J further concluded that FA had

3 

C v Air Nelson Limited [2011] NZEmplC 27. ibid [28]. 5  ibid [53]–[58]. 6  ibid [45]. 7  ibid [45] and [53]. 8  ibid [54]. 4 

Air Nelson Limited v C—Commentary 289 set out to seduce C and that was illustrated by the fact that she must have removed her underwear and her tampon in the plaintiff ’s bathroom before she returned to his bed naked during the night.9 Perkins J based these conclusions on the fact that both parties agreed that FA had been discussing the possibility of sexual intercourse with a married man and that she had claimed to have had sex with two airline pilots in the past. Perkins J relied heavily on the corroboration of the two men, discarding both the statement made by FA, who claimed that she would have never had sex with C or FO and the statement made by the person who picked FA up from the hotel, who claimed that FA was distressed and still very drunk. (3) Finally, Perkins J considered the wider obligations of C as a superior and captain of the plane. Instead of addressing the inherent gendered, hierarchical and economic power imbalance between C and FA, Perkins J minimised C’s responsibility due to his status as a pilot and captain. He relied heavily on the evidence given by Captain Kenny, ANL’s Line Operation Manager who assisted Mr Hambleton with the investigation. Perkins J spent most of his judgment’s conclusions (seven paragraphs out of 16)10 addressing the evidence provided by ­Captain Kenny who was neither a witness to the events nor a direct actor in the investigation. He was considered nevertheless to have a reliable opinion because he had what Perkins J viewed as “a great deal of acumen and common sense” as well as “substantial experience as a military pilot”.11 Perkins J assessed that C was not in breach of his wider obligations as a pilot mainly based on the opinion put forward by Captain Kenny. All of this has the distinct flavour of an “old boys’ network”, which contributes to perpetuating male power and privileges, while disregarding women’s interests and ultimately undermining the law on sexual harassment. In handing down this decision, the Employment Court found that the primary remedy for the dismissal would be the reinstatement of C’s position with ANL. The Employment Court held that C should be reinstated within 21 days of the judgment and should be reimbursed his loss of salary between the time of his dismissal and his reinstatement.12 The Employment Court also considered the award of damages and held that, due to contributing factors on C’s part, such as the willing consumption of alcohol, it would be reasonable to reduce his damages from $25,000 to $10,000. However, such contributing factors did not alter the primary decision that C should be reinstated. ANL made an application for leave to appeal to the Court of Appeal.13 The application was unsuccessful because the majority of the Court of Appeal decided that the matter was neither a question of law nor a matter of general or public importance as set out under s 214(3) of the Employment Relations Act.

9 ibid. 10 

ibid [58]–[65]. ibid [59]. 12  ibid [72]. 13  Air Nelson Limited v C (n 1). 11 

290  Annick Masselot

The Feminist Judgment Catran and Coleman JJ’s feminist judgment is a dissenting opinion of the Court of Appeal’s decision to refuse leave to appeal against the judgment of the Employment Court. They find that the case raises questions of law which are of general public importance because the issues ‘go to the heart of the way women have been, and on occasion still are, characterised both in society generally, and in our justice system’, thereby meeting the ­criteria for leave to appeal.14 After considering the legal questions, the feminist judges conclude that the Employment Court made errors of law in that it misapplied the test for justification under s 103A of the Employment Relations Act in assessing whether C’s dismissal was unjustified and that it misapplied the legal principles applicable to a complaint of sexual harassment in all the circumstances of the case. At the core of the feminist judgment is the question of the credibility of the female victim, which is explored through the prism of the power imbalance inherent to sexual harassment cases and the standard of proof required for sexual harassment. The feminist judgment takes the woman’s perspective on sexual harassment, which emphasises and credits the woman’s experience of reality.15 Catran and Coleman JJ reveal how the Employment Court’s decision was influenced by unspoken and gender biased assumptions linked to the inability to take a female perspective. The original judgment is laden with assumptions about FA.16 Perkins J made numerous assumptions about her behaviour and came to the conclusion that she shared responsibility for her situation. His decision implied that she contributed to her own situation by drinking, showing part of her body, and being in a male space, in essence placing herself in a dangerous situation. Even more surprisingly, Perkins J went further by assuming that FA deliberately seduced C.17 The feminist judgment challenges these unspoken assumptions in order to apply the law which ultimately aims to redress discrimination and provide a space for women to participate in the workplace safely. Reputation, talk of a sexual nature, smiling suggestively, exposing part of one’s body,18 and being drunk do not signal the existence of consent or indicate that sexual acts are welcome.19 Catran and Coleman JJ squarely place responsibility not on the drunk victim but on the senior staff member, who not only bought the alcohol but also topped up the glass of the female flight attendant.20 In doing so, the feminist judges reveal the existence of the power imbalance and highlight the flight attendant’s vulnerability. In this case, the Captain is in a position of authority over the young female flight attendant. The original judgment shows a lack of understanding about how women respond to sexual harassment.21 In situations where evidence is lacking, as in the present case, 14 

Employment Relations Act 2000, s 214 (3). See Catran and Coleman JJ, this collection [101]. McClusky, ‘Privileged Violence, Principled Fantasy, and Feminist Method: the Colby Fraternity Case’ (1992) 44 Maine Law Review 261, 265. 16  See, in particular, C v Air Nelson Limited (n 3) [54]–[55], cited in Catran and Coleman (n 14) [79]. 17  ibid [54]. 18  Catran and Coleman (n 14) [38]. 19  A Aggarwal, Sexual Harassment in the Workplace (Toronto, Butterworths, 1992) 65. 20  Catran and Coleman (n 14) [33]. 21  L Fitzgerald, S Swan and K Fischer, ‘Why Didn’t She Just Report Him? The Psychological and Legal Implications of Women’s Responses to Sexual Harassment’ (1995) 51 Journal of Social Issues 117. 15  M

Air Nelson Limited v C—Commentary 291 ‘common sense’ is often put forward. However, ‘common sense’ may be gender biased, grounded in the male perspective, and lacking a basis in reality. Women’s responses are often ignored and replaced by some form of male model of reaction instead.22 Different people react differently to sexual harassment, yet most people assume that when harassment occurs, victims will behave like empowered male subjects and forcefully stand up for themselves. Researchers have shown that when confronted with sexual harassment, many people, ­especially women, do not react in this way at all.23 As a result, those who have not been victimised falsely overestimate what their own response would be, and unduly judge others who remain passive in the face of sexual harassment. This is illustrated by Perkins J’s inability to conceive that FA should not remember the sexual act but would remember to take her cell phone on exiting C’s room. His lack of understanding together with his moral judgement of FA’s behaviour contributed to diminish the credibility of her story.24 By contrast, Catran and Coleman JJ consider alternative explanations consistent with the account of events given by both FA and the witness who collected FA from the hotel. In the feminist judgment, the fact that no charge of sexual violation was laid does not necessarily imply that the claim of sexual harassment was without foundation.25 The feminist judges identify from the outset that the wrong legal test had been applied. Sexual harassment enquiries under s 108 of the Employment Relations Act do not equate to judicial enquiries. In particular, lack of consent is not required under the claim of sexual harassment, only ‘behaviour that is unwelcome or offensive’ to the employee and which ‘has a detrimental effect on that employee’.26 By conducting an enquiry into the consent of the female employee, the Employment Court ignored the existence of sexual harassment as if it did not happen or as if it was not important, and not serious, ultimately undermining the intention of the legislation. Sexual harassment is difficult to prove. To establish sexual harassment, evidence must be collected and then interpreted. However, evidence in cases of sexual harassment is not always straightforward as the feminist judges point out by citing Chief Judge Goddard: ‘sexual harassment is … insidious and deceptive in character. Its proof is therefore often elusive.’27 Catran and Coleman JJ recognise that finding the necessary evidence in such cases is not easy. Where evidence exists, the pervasive myth that women are incompetent and unreliable witnesses still influences judges’ interpretations. The perception that women are ‘less capable, less rational and therefore less credible than men’28 is compounded by the myth that women lie about sexual matters.29 In addition, sexual harassment claims (and other sex-related claims) are considered to be ‘easy to make and hard to be proved.’30 As a

22  J Debono, ‘Sexual Harassment in Employment: An Examination of Decisions Looking for Evidence of a ­Sexist Jurisprudence’ (2001) 26 New Zealand Journal of Industrial Relations 329, 334. 23  K Diekmann et al, ‘Double Victimization in the Workplace: Why Observers Condemn Passive Victims of Sexual Harassment’ (2013) 24 Organization Science 614. 24  C v Air Nelson Limited (n 3) [54]. 25  Catran and Coleman (n 14) [47]. 26  Employment Relations Act 2000, s 118(1)(b)(iii). 27  Catran and Coleman (n 14) [91] citing Z v A [1993] 2 ERNZ 469 (EmpC). 28  K Kinports, ‘Evidence Engendered’ (1991) 2 University of Illinois Law Review 413, 435. 29  W Davis, A Feminist Perspective on Sexual Harassment in Employment Law in New Zealand (Wellington, New Zealand Institute of Industrial Relations Research, 1994). 30  M Hale, History of the Pleas of the Crown I (London, Professional Books, 1971) 635.

292  Annick Masselot result, corroboration is often required in sexual harassment cases because it is assumed that the complainant has good reasons to lie and that her story should therefore be mistrusted. In reality, it is very difficult for victims of sexual harassment to make a complaint31 ‘for the very reason that it involves a confrontation with the person who has effectively wielded a reign of terror over [the victim].’32 Moreover, women are often reluctant to complain because they fear that they will not be believed or supported by their employer or the justice system or worst yet, that they will be ridiculed.33 As a result there is a low level of complaints and ultimately positive findings.34 The feminist judges put the woman’s perspective forward when interpreting the existing evidence. As the evidence is incomplete, corroboration is used to establish what happened on the balance of probabilities. Perkins J chose to rely on the collusion of the male witnesses, who had similar interests relating to the outcome of the investigation into their alcohol consumption. By contrast, Catran and Coleman JJ are even-handed. They do not pre-judge the female witness, whose behaviour, at least post-event, is corroborated by an outsider: ‘A sexual harassment law which works for women must value women’s perspectives of sexual behaviour, while questioning male perspectives’.35 Giving weight to women’s stories is essential and consistent with feminist legal method.36

Conclusion New Zealand employment institutions have a poor record of dealing with sexual ­harassment.37 The Employment Court’s decision in Air Nelson Limited v C falls within a trend in New Zealand which has been characterised as ‘sexist jurisprudence’.38 Indeed,

31  K Gallivan, ‘Sexual Harassment after Janzen v Platy: The Transformative Possibilities’ (1991) 49 University of Toronto Faculty of Law Review 27; D Lisak et al, ‘False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases’ (2010) 16 Violence Against Women 1318. 32  Z v A (n 28) 482 (per Chief Judge Goddard). 33 C MacKinnon, Sexual Harassment of Working Women: a Case of Sex Discrimination (New Haven, Yale University Press, 1979) 49–52. 34 Only partial statistics are kept in New Zealand. While the New Zealand Human Rights Commission reports that it has received 151 sexual harassment complaints over the last three years—87% of those have been made by women, the Ministry of Business, Innovation and Employment (MBIE) does not keep records on the issue. However, research in the US (R Ilies et al, ‘Reported Incidence Rates of Work-Related Sexual Harassment in the US: Using Meta-Analysis to Explain Reported Rate Disparities’ (2003) 56 Personnel Psychology 607; DT Duhart, ‘Violence in the Workplace, 1993–99’ (Washington DC, US Department of Justice, 2001) www.bjs.gov/content/pub/pdf/vw99.pdf) and in the European Union shows that sexual harassment is prevalent in the workplace. For instance 40 to 50% of EU women have experienced sexual harassment in the workplace (A Numhauser-Henning and S ­Laulom, Harassment Related to Sex and Sexual Harassment Law in 33 ­European Countries (European Union, European Commission, 2006) ec.europa.eu/justice/gender-equality/files/your_ rights/final_harassement_en.pdf). 35  Davis, ‘A Feminist Perspective on Sexual Harassment’ (n 29). 36 MacKinnon, ‘Sexual Harassment of Working Women’ (n 33); C Littleton, ‘Feminist Jurisprudence: the Difference Method Makes: Feminism Unmodified by Catharine A. MacKinnon’ (1989) 41 Stanford Law Review 751. 37 C Hicks, ‘Does the Sexual Harassment Procedure Work?’ (1988) 13 New Zealand Journal of Industrial Relations 291; Davis, A Feminist Perspective on Sexual Harassment (n 29); Debono, ‘Sexual Harassment in ­Employment’ (n 22). 38 Debono, ‘Sexual Harassment in Employment’ (n 22).

Air Nelson Limited v C—Commentary 293 e­ vidence shows that sexism persists in judicial decisions despite the existence of provisions to protect against sexual harassment in the Employment Relations Act and the Human Rights Act 1993 (NZ).39 The efficient application of sexual harassment law remains therefore questionable. The Employment Authority’s controversial view that a ‘fun slap’ to the bottom of a female employee can be seen in context as acceptable in the workplace,40 the high profile Roger Sutton incident41 and the Prime Minister repeatedly pulling a waitress’s hair42 suggest that some unacceptable attitudes towards sexual harassment are still prevalent and pervasive in New Zealand. However, some recent cases have taken a more positive approach. In A Ltd v H, the Court of Appeal granted leave to appeal an Employment Court decision involving similar issues to those in Air Nelson Limited v C.43 In another case, a sex worker was successful against her employer for sexual harassment before the Human Rights Review Tribunal, which demonstrates more enlightened attitudes to sexual harassment.44 The feminist judgment stands in the line of these positive judgments.

39  ibid. See also A Reilly and A Masselot, ‘Women in the Workforce: Still Unequal After All These Years?’ in G Anderson and E Rasmussen (eds), Transforming Workplace Relations (forthcoming). 40  The Authority stated that ‘While inappropriate and which should not be repeated by Mr Sanson, [it] must be seen in context … It was a one-off slap which I accept was a “fun slap”’. See Newman v Taxi Lease Ltd ta The Plant Place (Auckland) [2014] NZERA 783 [47]. 41  M Van Beynen and H Rutherford, ‘Roger Sutton and His Dramatic Downfall’, Stuff (6 December 2014) www. stuff.co.nz/national/politics/63891913/roger-sutton-and-his-dramatic-downfall. 42 A Gulliver, ‘John Key: Ponytail Pull Not Sexist’, Stuff, (4 May 2015) www.stuff.co.nz/national/68235578/ John-Key-Ponytail-pull-not-sexist. 43  A Ltd v H [2016] NZCA 419,[2017] 2 NZLR 295. 44  DML v Montgomery [2014] NZHRRT 6.

Air Nelson Ltd v C

Court of Appeal  Wellington 13, 23 September 2011 O’Regan, Harrison, Stevens, Catran and Coleman JJ

CA243/2011; [2011] NZCA 488

CATRAN AND COLEMAN JJ. Introduction [32] This case is about an investigation by Air Nelson Limited (ANL) into an incident that took place between a male pilot and captain of the aircraft (C, the respondent in this appeal), and the complainant, a 19-year-old female flight attendant (FA) during an unplanned stopover. FA, C and the male first officer (FO) were staying overnight in a hotel. Over the course of the evening, they drank a quantity of wine and beer. At some time between midnight and 4 am, FA and C had sexual intercourse, which FA says she found unwelcome. FA made a complaint of sexual harassment to ANL. [33] ANL dismissed C after the investigation on the basis that his consumption of alcohol was irresponsible and not in conformity with the standards of behaviour the company expected of a professional pilot, including his responsibility to ensure his crew were free from alcohol and fit for duty. It also found he had sexually harassed FA. C brought a personal grievance for unjustified dismissal. [34] The Employment Relations Authority held that C’s suspension while the investigation was proceeding and his subsequent dismissal were both justifiable. The Authority was satisfied that, viewed objectively, the airline’s actions were what a fair and reasonable employer would have done in all the circumstances at the time of acting.9 [35] C elected to have the matter determined de novo by the Employment Court. He did not challenge ANL’s disciplinary procedure but rather he claimed his dismissal was substantively unjustified—that his conduct did not warrant summary dismissal. The Employment Court upheld the claim.10 [36] ANL now seeks leave to appeal to this Court, raising three questions of law for consideration by the Court: (1) whether the Employment Court misstated and misapplied the test for justification under s 103A of the Employment Relations Act 2000 (the Act)? (2) whether the Employment Court correctly applied the legal principles to the allegation of sexual harassment as it arose in the circumstances of this case? (3) whether the Employment Court misdirected itself when concluding that reinstatement was practicable, either by failing to take into account all relevant criteria or by having regard to irrelevant criteria?

9 10

C v AL Limited AA 6/10 13 January 2010 at [17]. C v Air Nelson Limited [2011] NZEmpC 27.

Air Nelson Ltd v C—Judgment 295 The criteria for leave to appeal [37] A party may appeal to the Court of Appeal against a decision of the Employment Court only on a question of law. The test for leave is set out in s 214(3) of the Act: The Court of Appeal may grant leave accordingly if, in the opinion of that court, the question of law involved in that appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[38] In deciding this appeal, we must therefore first determine: (1) Whether the alleged errors are properly characterised as questions of law. (2) Whether that question of law is of general or public importance. If this second criterion is not met, we may consider whether the case ought for any other reason to be submitted to this court for decision. The requirements are stringent.11 [39] Only significant questions of law will meet the test for leave.12 Neither the question of what constitutes an error of law, nor the general or public importance threshold, should be diluted.13 In those cases where the “for any other reason” residual discretion is relied on, the specialist nature of the Employment Court should be taken into account.14 [40] What constitutes a question of law was considered by the Supreme Court in Bryson v Three Foot Six.15 The Supreme Court confirmed that challenges to factual findings do not amount to errors of law, unless the court has overlooked a relevant matter, taken account of an irrelevant matter, or unless the findings are clearly unsupportable.16 Appealable questions of law, however, can arise in the reasoning of the court, through the premises and inferences on which the court’s conclusion is based, for example if the court has misdirected itself as to the applicable legal test.17 First question of law: Whether the Employment Court misstated and misapplied the test for justification under s 103A of the Act? [41] Section 103A of the Act provides:18 … the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering … whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

[42] The Employment Court considered the case law on s 103A in detail,19 with the benefit of submissions from two experienced counsel both well-versed in the history of this provision. The Court summarised the test in the following manner: [51] Based on the legal principles applying, the Court can appropriately inquire into whether Mr Hambleton had clear evidence upon which any reasonable employer could safely rely and/ or whether he conducted reasonable inquiries, which left him on the balance of probabilities with grounds for believing, and he did believe, that the employee was at fault. The Court is then

11 12 13 14 15 16 17 18 19

New Zealand Employers Federation Inc v NUPE [2001] ERNZ 212 (CA) at [27]. Bryson v Three Foot Six [2005] NZSC 34 at [19]. R v Slater [1997] 1 NZLR 211 at 215. New Zealand Employers Federation Inc v NUPE at [27]. Bryson v Three Foot Six [2005] NZSC 34. At [25]–[26]. At [24]. The section has been amended subsequently. At [47]–[51].

296  Jenny Catran and Martha Coleman entitled to make a further inquiry into whether, even if the evidence of the employer’s inquiries reasonably led to a finding of misconduct, the ultimate decision to dismiss, as opposed to taking some other disciplinary action, was justifiable applying the test under s 103A of the Act. [Emphasis added.]

[43] We agree with the majority that the Employment Court did not misstate the s 103A test. The Court correctly noted its role was not to enter into a fact-finding inquiry itself. Rather it was to satisfy itself that the employer, in carrying out its inquiry, adopted a logical chain of reasoning that was both transparent and reasonable in light of the facts uncovered. [44] However, we disagree with the majority that the Judge’s evaluation of the matters under s 103A was essentially factual, and for that reason his view of the facts must stand. We consider the Judge erred in the application of the s 103A test in the following ways: (a) First, there was an insufficient basis for the conclusion Mr Hambleton approached the inquiry with a closed mind from the outset. (b) Secondly, in determining credibility and in reaching findings of fact, the Court took into account irrelevant considerations and failed to take into account relevant considerations. (c) Thirdly, by proceeding from the starting point of whether or not charges were laid, the Court applied the wrong standard of proof. [45] In our view, these errors led the Court to make unfounded criticisms of Mr Hambleton’s investigation, thereby overstepping its role and straying into that of factfinding. The Court wrongly concluded from the decision by the police not to charge C with rape that the police had formed the view that the complaint was without substance.20 It also wrongly took into account FA’s sexual reputation. These errors had the effect of undermining the credibility of FA to the extent that no weight was placed on her evidence or that of others giving evidence in support of her claim of harassment. The failure to take proper account of FA’s complaint and her evident distress contributed to the Court wrongly concluding that what happened that evening was not contested. [46] These outcomes are evident in the Court’s treatment of ANL’s findings on the specific allegations against C. Was there a proper basis to conclude that Mr Hambleton approached the inquiry with a closed mind? [47] A finding that the decision maker is proceeding with a closed mind is not to be made lightly.21 The Court accepted there was no evidence of predetermination or bias arising from C’s involvement in union affairs. However, the Judge concluded from what he described as an “ungracious response” during cross-examination, where Mr Hambleton refused to agree that C’s record was exemplary, that Mr Hambleton approached the inquiry with a closed mind from the outset.22 Other examples were said to support this conclusion. While not expressly referenced, they clearly include Mr Hambleton’s findings in relation to the purchase and consumption of alcohol by all three crew members that evening. [48] On that issue, Mr Hambleton found that neither C nor FO was entirely truthful about saying that C intended to take any of the wine home with him. The Court was critical of this finding. It found that FA’s statement that she must have said something at the time was

20 21 22

At [35]. Whangamata Marina Society Inc v Attorney-General [2007] 1 NZLR 252 (HC) at [142]. At [28].

Air Nelson Ltd v C—Judgment 297 unreliable and therefore C’s unprompted statement enhanced his credibility. As against that, the uncontroverted evidence was that no wine was taken home. That fact provides an evidential foundation for Mr Hambleton’s conclusion. [49] Mr Hambleton also found that C and FO as well as FA had indulged in “binge drinking”.23 This was based on two factors—the self-reports of C and FO that all three had consumed similar amounts of alcohol and FA’s blood alcohol level contained in the evidence of Dr Sprott, the Chief Medical Officer for ANL’s parent company, Air New Zealand. FA had provided blood samples 14 hours after the drinking was said to have ceased.24 Based on these blood samples, Dr Sprott calculated that at midnight FA’s level of blood alcohol would have been between 158 and 186 milligrams of alcohol per 100 millilitres of blood. The estimate by the Institute of Environmental Science and Research was considerably higher at the top end at 285 milligrams per 100 millilitres. As the Court pointed out, the top end of either range indicates a significant amount of alcohol had been consumed.25 [50] Dr Sprott concluded that the reported drinking represented a heavy consumption of alcohol over a short period of time which was consistent with binge drinking. He also said it was concerning that the three crew members considered it acceptable in light of the health and safety implications of that behaviour.26 [51] While stopping short of finding that C breached the eight-hour rule, Mr Hambleton nevertheless found that drinking that amount of alcohol amounted to a serious lack of judgement as C may not have been alcohol-free the following morning.27 To put it in the terms used by William Young P in an earlier appeal in this case regarding name suppression, by failing to keep well to the windward of the mark, C acted imprudently.28 Overall, Mr Hambleton found that the purchase and consumption of alcohol was “irresponsible and unacceptable in terms of the standards of behaviour the company could reasonably expect of a pilot”.29 This conclusion fed into the fourth of the issues Mr Hambleton identified for investigation, namely whether C’s behaviour and conduct breached the standard expected of an airline captain. [52] The Court was critical of Mr Hambleton’s reliance on the report of Dr Sprott as well as more generally of the focus and findings of his investigation into alcohol consumption. The essence of the Court’s concern was that Dr Sprott’s report assumed that all three crew members had consumed the same amount of alcohol when it should have been clear to Mr Hambleton that FA had probably consumed more. This, the Court said, was the only explanation for the calculation of the substantial quantity of alcohol in her blood.30 [53] Assuming that to be the case, her intoxication must have been obvious to both FO and C. Mr Hambleton was right to consider whether this amounted to a breach of the health and safety responsibilities of a pilot, not to mention responsibilities in relation to the personal safety of a crew member who was both young and junior. His finding that C had failed to ensure his crew were free of alcohol and fit for duty the following day, and that their welfare was not compromised through excessive drinking, must be correct. The fact

23 24 25 26 27 28 29 30

At [41]–[42]. At [39]. At [40]. At [41]. At [31]. S v Airline Ltd [2010] NZCA 263 at [23]. At [36]. At [45].

298  Jenny Catran and Martha Coleman that C (as well as FO) was topping up FA’s glass must mean he bore responsibility for her intoxication. [54] The Court also considered Mr Hambleton should have placed greater reliance on the report of Mr Shanahan, which provided an estimate of when the blood alcohol of both crew members would have been zero. This too was based on self-reporting and found in the case of both men that it was likely (but not certain) that their blood-alcohol concentration would have been zero by the time they were required to report for work. It does not follow necessarily that Mr Hambleton was wrong to consider that C would have been unable to assess at the time he finished drinking whether he would have been alcohol-free by the requisite time.31 [55] The Court was critical of Mr Hambleton for not referring Mr Shanahan’s report to Dr Sprott for comment. This criticism appears unwarranted given Mr Hambleton did not find that either man breached the rules or policies around alcohol consumption. Had C’s dismissal been based on a breach of those rules the Court may well have been justified in finding Mr Hambleton did not have an objective basis for the dismissal. The Court at [53] appears to have wrongly concluded that it was so based, and in so doing also led itself into error. Mr Hambleton was rightly also concerned with the wider point, whether the whole drinking episode was acceptable conduct. [56] The Judge clearly considered Mr Hambleton’s findings on the alcohol point as further evidence of Mr Hambleton approaching the investigation with a closed mind. We do not see it that way. When viewed through the lens of the conduct expected of the senior member of the flight crew with significant and important health and safety obligations, Mr Hambleton was justified in his conclusions. The fact that FA was clearly still under the influence of alcohol the next morning supports this. [57] One of the Court’s central criticisms of the investigation of the alcohol consumption was not carried forward into its conclusions on the sexual harassment complaint. If, as the Court found, FA had consumed more alcohol than either FO or C and was significantly intoxicated, her memory of events could well have been impaired as a consequence. Indeed, Mr Hambleton found that to be so.32 It also raises a question of whether FA was capable of giving legally-effective consent to sex, providing support for Mr Hambleton’s finding that the sexual activity was not consensual. Relevant and irrelevant considerations: Did the Employment Court err when determining credibility? [58] C gave a detailed account of what occurred that evening. C alleged that while all three were in his bedroom there was “smutty banter” between himself, FA and FO, in particular that FA said she did not mind sleeping with a married man, and that she had already slept with two first officers in the company. C and FO also claimed that FA had lain on C’s bed and invited FO to join them; that she had pulled her robe up so they could spank her and that she had exposed her belly button and breasts to display her body piercings. FO claimed that when he went to bed around midnight, FA was under the covers in C’s bed and was smiling at FO suggestively.33 [59] FO’s evidence corroborated C’s in all material respects.34 The Judge accepted that C’s evidence was corroborated by FO without any apparent consideration that, at least in

31 Ibid. 32 At [35]. 33 At [18]. 34 At [21].

Air Nelson Ltd v C—Judgment 299 relation to the alcohol issue, FO’s interests were aligned with C’s. At the same time, the corroborating evidence given by the employee who assisted FA as to FA’s state when she was collected in the morning, which must be viewed as more impartial, was not mentioned. [60] FA did not appear to address C’s and FO’s account of her behaviour in her statement to Mr Hambleton. Nevertheless, the Judge said it could be inferred to be true from some comments in her statements.35 These comments were not identified by the Judge and we are uncertain on what evidence he was relying. [61] In relation to the sexual intercourse between them, C stated that he woke at 4 am to find FA fully naked in his bed attempting to sexually arouse him. [62] FA told Mr Hambleton that she could not remember what had happened between midnight and 4.30 am, but that she felt she had had sex and that there was no way she would willingly have had sex with C because he was a married man with children. The fact that she had her period was another reason she would not willingly have had sex.36 [63] The evidence is clear that FA was distressed and upset. After leaving C’s room at around 4.30 am she rang her friend K, another airline employee, and told her that something really bad had happened and she felt dirty and disgusting. She showered and left the hotel with assistance from an airline employee. That person described her as being dazed and incoherent, and under the influence of alcohol. Her hysteria and distress were also reported to Mr Hambleton by others who were in contact with her at that time.37 [64] Mr Hambleton formed the view that C’s actions were unwelcome to FA and amounted to serious misconduct. He found that FA’s consciousness and recall were likely affected by alcohol.38 [65] The Employment Court held that Mr Hambleton’s conclusion was not reasonable in terms of s 103A: [54] On the finding by Mr Hambleton that C sexually harassed FA, I find that Mr Hambleton did not have clear evidence upon which he could reasonably or safely rely in reaching that conclusion. He failed to rely upon the evidence, which was patently before him. Mr Hambleton preferred instead to speculate simply based on FA’s state when she was still clearly under the influence of alcohol and for which state there could be other conclusions than those he reached. FA claimed to be unable to recall a great deal of the events of the night in question. Mr Hambleton had no evidence from her that she had previously suffered a memory loss, nor apparently since the events. She claimed in her evidence and in her statements that she did not drink alcohol to excess that night and yet it would have been clear to Mr Hambleton, from the scientific and medical analysis, that she did. Mr Hambleton’s conclusions are not reasonable. He should have considered whether FA’s alleged loss of memory was simply a convenient way to avoid confronting her own behaviour that night. There were three pieces of evidence before him from C, two of which were corroborated by FO, which should in his consideration have seriously undermined FA’s allegation of non-consensual sexual intercourse with C; for that is what she alleged by the complaint of rape against him. The first is that despite her allegation that she would not have had consensual sex with C because he was married, she had admitted a willingness to do that in the conversations on the bed the previous evening. The second is that when FO came into the room the following morning, he noticed FA’s underclothing on the floor on the side of the bed where she had clearly slept. Thirdly, C states that he found her tampon neatly wrapped in toilet paper in the bathroom rubbish bin. FA confirmed in her statement to Mr Hambleton that prior to retiring for the night in C’s room, she had gone to her own room to use the bathroom but

35 36 37 38

At [15]. At [24]. At [35]. At [35].

300  Jenny Catran and Martha Coleman had not removed her tampon then. She stated that her tampon had been removed by the time she left the bedroom the following morning. The facts confronting Mr Hambleton were that at some stage during the night, FA had left the bed, removed her tampon, removed her underclothing and climbed back into the bed naked. Such acts should have been a clear demonstration to Mr Hambleton of her premeditation to seduce C into having sexual intercourse with her. That would also be consistent with her actions graphically described by C in his statement. The sexual intercourse and its foreplay took place over 30 minutes. It should have been inconceivable to Mr Hambleton that FA would not have been conscious of it or remember it. She would have sobered considerably by then. She stated in her evidence that the first thing she remembers is standing by the door of the room dressed only in her bathrobe. She nevertheless, but still in an alleged state of automatism, had the presence of mind apparently to find her room key and cell phones. To Mr Hambleton her allegations should have stretched his credulity. [55] Instead, Mr Hambleton, as the inquirer, has entered into speculation to attribute motivation and actions to C for the purposes of justifying dismissal, which was simply not tenable on the evidence confronting him. Mr Hambleton claimed that the sexual intercourse occurred earlier than 4.00 am. This would be convenient to the company’s position, as it would infer that C took advantage of FA when she was in a more intoxicated state than she would have been at 4.00 am. This pure speculation on Mr Hambleton’s part does not escape comment in the determination of the ­Member of the Authority either. In the face of FA’s failure to give any account, many of Mr Hambleton’s decisions were made against the weight of evidence clearly confronting him. They were complete speculation and he should not have believed FA on the key issues. On an objective basis, his decision that C sexually harassed FA could not have been the decision of a fair and reasonable employer in all of the circumstances presented to him by the time the dismissal occurred.

[66] With respect to the Judge, his finding that it was “inconceivable” that FA could have no memory of the sexual intercourse is inconsistent with his previous findings about her level of intoxication and the evidence of the friend who picked her up that she was still intoxicated. He also considered that FA’s lack of recall meant that C’s and FO’s evidence was uncontested and should have been accepted by Mr Hambleton. We disagree. Although FA stated that she could not recall the events in detail, FA clearly disputed C’s version of events. [67] Other grounds given by the Judge for disbelieving FA are capable of alternate explanations. For example the conclusion that at some point during the night, FA had removed her underwear and her tampon, are based on a non-sequitur. FO stated he saw FA’s underwear on the floor, however this does not explain how it came to be there. It was not reasonable to conclude, as the Judge did, that “at some stage during the night, FA had left the bed, removed her tampon, removed her underclothing and climbed back into the bed naked”. [68] As another example, the Judge wrongly concluded from the decision not to charge C with rape that the police had formed the view that the complaint was without substance, which affected his assessment of her credibility.39 There is no basis for that view. Charging decisions are based on the Solicitor-General’s Prosecution Guidelines, which require a reasonable prospect of success for charges to be laid. FA’s impaired recollection of events that evening would have been a factor in that decision.

39

At [35].

Air Nelson Ltd v C—Judgment 301 [69] The Judge also wrongly took into account FA’s alleged sexual reputation in finding that FA deliberately seduced C, and by inference that she therefore welcomed the sexual activity that occurred. The Judge focused on the conversation earlier in the evening recounted by C, and held that this undermined FA’s credibility about the events that followed. In particular, he relied on the alleged statement by FA that “it did not matter to her if she was having sex with a married man” and that she had slept with two first officers in the company already,40 to counter her subsequent statement that she would not have slept with C because he was married.41 He rejected her statement that she did not recall the conversation, and held that “[FA’s] alleged loss of memory was simply a convenient way to avoid confronting her own behaviour that night”.42 [70] We conclude that the Judge took a moral view of FA’s conduct which affected his opinion of her and therefore the reliability of her evidence. The language used by the Judge in relation to FA was value-laden and exhibited a lack of even-handedness in the treatment of the evidence of C and FA. Even if C’s account of events is correct, the Court should not have relied on a victim’s prior conduct when assessing a current complaint. Indeed, s 116 of the Act expressly provides that no account may be taken of any evidence of the complainant’s sexual experience or reputation. This is a matter which has been exhaustively dealt with in the criminal arena.43 Not only do the same considerations apply in sexual harassment cases,44 under the Act they have been given statutory effect. Did the Employment Court apply the wrong standard of proof? [71] By placing weight on the decision by the police not to charge C with rape in determining the credibility of the sexual harassment allegations, the Court effectively applied the wrong standard of proof. [72] The question of the standard of proof required in sexual harassment cases has been settled by the Supreme Court in Z v Dental Complaints Assessment Committee.45 In that case the Court confirmed there are only two standards of proof, and that in civil proceedings where the same subject matter could give rise to criminal charges, the civil standard applies. The majority noted that the civil standard has flexibility built into it which means that more cogent evidence can be required to meet the standard in serious cases.46 But it also cautioned that the natural tendency to require stronger evidence should not be elevated into a legal proposition. The extent to which stronger evidence will be required in order to prove unlikely events or those with grave consequences is to be determined in the context of the particular case.47 [73] The notion of a flexible civil standard has been criticised in the English courts.48 In Re B (Children) (Care Proceedings: Standard of Proof), the Court was clear that neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof. Baroness Hale (with whom the other Law Lords

40 41 42 43

44 45 46 47 48

At [15]. At [54]. At [54]. Section 44 of the Evidence Act 2006 provides that the judge must give permission for admission of evidence or cross-examination of a complainant about her sexual experience with any person other than the defendant. This evidence will only be admissible if it is of such direct relevance to the facts in issue, that it would be contrary to the interests of justice to exclude it; R v Morrice [2008] NZCA 216 at [21]; Noble v R [2010] NZCA 291. See for example Priest v Rotary 634 F Supp 571 (NDCal 1986). Z v Dental Complaints Assessment Committee [2008] NZSC 55. At [102]–[105]. At [105]. Similarly in Canada: FH v McDougall [2008] 3 SCR 41.

302  Jenny Catran and Martha Coleman agreed) expressly rejected the notion that courts should be “more sure” in finding serious allegations proved. Her Ladyship also held that inherent improbabilities were often context-specific and simply something to be taken into account in making findings of fact.49 A heightened civil standard was considered inapt in child protection cases in that the more serious the anticipated consequences or the more serious the apprehended injury the more difficult it would be to satisfy the necessary standard of proof. The possibility that a failure to bring sufficiently cogent evidence of child abuse could result in the child staying with an abusing parent or parents was said to be an argument in favour of making the threshold lower, not higher.50 And, as Baroness Hale pointed out, the consequences are serious either way if the Court gets it wrong.51 [74] We consider similar considerations apply in sexual harassment cases. As Chief Judge Goddard stated in Z v A:52 [Sexual harassment] is insidious and deceptive in character. Its proof is therefore often elusive. That is not to say that suspicion may be treated as tantamount to guilt, but there is just the same no reason to require too exacting a level of proof. To do so could place the remedy tantalisingly out of reach for most victims.

[75] While Z v A was in part overturned by the Court of Appeal in Managh v Wallington,53 that passage is consistent with the clarification of the approach to standards of proof by the Supreme Court in Z v Dental Complaints Assessment Committee. In Managh, the Court rejected the notion that a different standard of proof applies to constructive dismissal for reasons of sexual harassment than it does to an employer seeking to justify a dismissal for sexual harassment. That is undoubtedly correct. As the Court noted, it is difficult to see how an allegation of sexual harassment can be more serious when the alleged harasser is an employee then when it is the employer.54 However, the Court adopted an infelicity of language when it said that the graver the allegation the more probable it should be before being found proved, which has regrettably been applied in subsequent cases.55 The degree of probability does not change although the cogency of the evidence required to meet the standard might. And, as all three cases demonstrate, the consequences of the employer’s decision will be serious one way or another to all concerned, not just to the person alleged to have sexually harassed another. [76] This is particularly important in employment disputes in which the complainant and respondent are often in unequal positions of power. Care must be taken not to consider the seriousness of the allegation from the point of view of the alleged harasser only. There are usually consequences for complainants if complaints are not upheld, including that it becomes untenable for them to remain working in the organisation. Effectively then, both parties are at risk of losing their positions. [77] It is also the inherent probability or improbability of the particular series of events occurring, and not just the seriousness of the allegation or the gravity of the consequences, that affects the strength of the evidence required. Regrettably, there is nothing improbable in an older and more senior employee having sex with a junior colleague after she has

49 50 51 52 53 54 55

Re B (Children) (Care Proceedings: Standard of Proof) [2008] 3 WLR 1 (HL) at [14]–[15], [62]–[64], [70]–[73]. At [64]. At [71]. Z v A [1993] 2 ERNZ 469 at 472. Managh v Wallington [1998] 2 ERNZ 337 (CA). At pp 340–342. See for example Kumar v Icehouse (NZ) Ltd [2006] ERNZ 381 at [57].

Air Nelson Ltd v C—Judgment 303 had too much to drink. Since sexual harassment is not uncommon, but false complaints of sexual harassment are,56 this is not one of those cases in which more cogent evidence is required. That does not mean of course that it must have occurred in this case, only that it is judged by the civil standard, without reference to criminal standards of proof. [78] The employer (and the Court) may often have to choose between believing the ­complainant or believing the respondent. Adjudicators will thus look beyond the ­evidence of the main protagonists in order to reach a conclusion about where the truth lies.57 That is what Mr Hambleton did in this case, by placing reliance on FA’s state according to others that morning. The Court, on the other hand and wrongly in our view, appears to have placed no weight on that evidence at all. Conclusion on whether the Employment Court misapplied the test under s 103A [79] For all of these reasons we find that the Employment Court misapplied the test for justification under s 103A which limits the Court’s role to inquiring whether there was clear evidence on which the employer could safely rely in reaching its decision the employee was at fault. In our view, there was clear evidence on which ANL could safely rely to conclude on the balance of probabilities (as Mr Hambleton did) that C had acted inappropriately with regard to the alcohol consumption and had breached his obligations as a pilot, and that the sexual intercourse was unwelcome to FA. [80] The Court’s finding to the contrary is tainted by legal errors, in particular: (a) It had an insufficient basis for its finding that Mr Hambleton approached the issue with a closed mind. (b) It took into account the lack of police charges and FA’s sexual reputation when determining credibility and failed to take into account the fact of her rape complaint and the independent evidence of her distressed state. (d) By placing weight on prosecution decisions in assessing the sexual harassment allegations, it applied the wrong standard of proof. Second question of law: whether the Employment Court correctly applied the legal principles to the allegation of sexual harassment? [81] The second ground of appeal by ANL is whether the Court correctly applied the legal principles applicable to a complaint of sexual harassment in all the circumstances of the case. ANL submitted that the Judge misdirected himself as to the consent element of the allegation of sexual harassment, and that he should have considered whether, in all the circumstances, FA was subjected to unwelcome or offensive behaviour. Secondly, ANL submits that the Judge erroneously took into account FA’s sexual experience and reputation when finding that FA deliberately seduced C. [82] Mr Haigh QC submitted for C that the Judge’s finding that FA deliberately seduced C into having sexual intercourse with her should be viewed in its correct legal context— that the finding was merely a factual finding within the Judge’s wider s 103A enquiry, and did not constitute a discrete ground for rejecting ANL’s findings.

56

57

Research also indicates that only 2 percent of rape complaints are false—see for example A Grubb and E Turner “Attribution of Blame in Rape Cases: A Review of the Impact of Rape Myth Acceptance, Gender Role Conformity and Substance Use on Victim Blaming” Aggression and Violent Behaviour 17 (2012) 443 at 445. Managh v Crawford [1996] 2 ERNZ 392 at 404 (overturned on appeal on other grounds).

304  Jenny Catran and Martha Coleman [83] In determining whether the Judge applied the correct legal principles relating to a complaint of sexual harassment, the Court must first consider the legal test for sexual harassment in an employment context.58 This is set out in s 108 of the Act: 108. Sexual harassment—(1) For the purposes of sections 103(1)(d) and 123(d), an employee is sexually harassed in that employee’s employment if that employee’s employer or a representative of that employer— (a)

directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains— (i)

an implied or overt promise of preferential treatment in that employee’s employment; or (ii) an implied or overt threat of detrimental treatment in that employee’s employment; or (iii) an implied or overt threat about the present or future employment status of that employee; or (b) by— (i) the use of language (whether written or spoken) of a sexual nature; or (ii) the use of visual material of a sexual nature; or (iii) physical behaviour of a sexual nature,— directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee’s employment, job performance, or job satisfaction. (2) For the purposes of sections 103(1)(d) and 123(d), an employee is also sexually harassed in that employee’s employment (whether by a co-employee or by a client or customer of the employer), if the circumstances described in section 117 have occurred.

[84] Section 108(2) applies here because the alleged sexual harasser was another employee, not the employer or FA’s manager, which in turn requires consideration of s 117 of the Act. Section 117 provides that a complainant who has been subject to this type of behaviour from another employee may complain to her employer, and the employer must inquire into the facts and take steps to prevent repetition of the behaviour. This was ANL’s obligation upon receiving FA’s complaint against C. Sections 108 and 117 are therefore both central to the Court’s assessment of whether ANL acted as a fair and reasonable employer upon receiving FA’s complaint. [85] There is no suggestion that C offered FA any promise or threat in terms of s 108(1)(a). Rather, the question is whether C’s behaviour was “unwelcome or offensive” to FA, and whether the behaviour had a detrimental effect on FA’s employment, in terms of s 108(1)(b). This is a mixed subjective and objective test. Whether the conduct was sexual is an entirely objective inquiry, whether it is unwelcome or offensive entirely subjective, and whether it results in detriment both subjective and objective.59 [86] The question of whether behaviour is “unwelcome or offensive” should not be confused with the question of “consent”, which has overtones from the criminal law. A person

58 59

Kumar v Icehouse (NZ) Ltd at [49]. Lenart v Massey University [1997] 1 ERNZ 253 at 267.

Air Nelson Ltd v C—Judgment 305 may consent to behaviour which nevertheless is unwelcome or offensive—this is clear from the text of s 108(1)(a). [87] Mr Hambleton’s decision that C’s behaviour was unwelcome to FA was, in part, based on the friend’s evidence of FA’s distress when she picked her up the next morning and the other witnesses who saw FA.60 The Judge does not appear to have considered this evidence, however we find it compelling. [88] The Judge did not directly address the question of whether C’s behaviour was unwelcome or offensive to FA and whether it affected her employment, in terms of s 108(1) (b). Instead, he equated sexual harassment with rape, that is, non-consensual sexual intercourse, and concluded from the fact that no charges were laid that the sex had been consensual. As discussed above, consent in the context of criminal proceedings is not the same as “unwelcome and offensive” conduct under s 108(1)(b). The Court therefore misdirected itself and applied the wrong legal test. [89] We do accept that while not addressing s 108(1)(b) directly, by finding FA premeditatedly seduced C the Judge implicitly found C’s sexual behaviour to have been welcomed. However, as we have signalled already, in making this finding the Judge erroneously concluded that FA’s credibility was undermined by the police’s decision not to bring charges and wrongly relied also in reaching his findings on her alleged prior sexual conduct contrary to s 116 of the Act. The Court also overlooked FA’s obvious distress. Third question of law: Whether the Employment Court misdirected itself when concluding that reinstatement was practicable? [90] This question relates to whether C should be reinstated as a pilot, following a finding that his dismissal was unjustified. As we have found the Employment Court’s decision that his dismissal was unjustified to be based on legal errors, it is unnecessary for us to consider this issue further. Test for leave met [91] As stated in [37], to meet the s 214(3) threshold the errors identified must all be questions of law and must meet the general and public importance test necessary for the granting of leave to appeal to this Court. Not every alleged error warrants further litigation. [92] The errors here meet the threshold for further consideration by this Court. They relate to the correct interpretation and application of the law relating to sexual harassment, and the conduct by employers of inquiries concerning complaints of sexual harassment is a matter of wide significance. It is important that courts do not place barriers in the way of women (or men) coming forward with complaints of sexual harassment, or of employers investigating such complaints with both thoroughness and sensitivity. It is also important that prejudicial assumptions about women’s behaviour and credibility are not relied upon in any part of our justice system or within the employment environment. Result [93] On the basis that the Judge misdirected himself on the application of s 103A and failed to apply the correct legal test in s 108, we would grant leave and would also allow the appeal. As the questions to be determined rely largely on the credibility of witnesses, including C, FA and FO, we consider it appropriate to remit the matter back to the Employment Court for rehearing in light of our decision.

60

At [25].

306 

Commercial Relationships

308 

17 Commentary on Stephens v Barron Should Company Law Principles Affect Duty of Care Analysis? LIESLE THERON

The Facts Stephens v Barron is a case about the personal liability in negligence of a company ­director for harm caused by the actions of a company employee.1 Mrs Barron engaged a company owned by Mr and Mrs Stephens to clean the carpets and spray for insects in the house she owned with her husband. Mrs Stephens was the sole director and Mr Stephens was the principal manager of the business. One of the company’s employees undertook the spraying. Mrs Barron alleged that the wrong spray substance was used and that it was highly toxic and caused extensive damage to her home and to her health and that of her family. In New Zealand, compensation cannot be sought for personal injury caused by negligence, which is covered by the accident compensation scheme.2 Mrs Barron also was unable to recover compensation for the damage to her property from the company because it had been liquidated. She therefore sought to recover damages from Mr and Mrs Stephens personally. Mr and Mrs Stephens applied for summary judgment, on the basis that no duty of care could be established. One of their arguments was that the imposition of a duty of care would be an attack on the doctrine of limited liability, which protects shareholders from liability for the actions of the company. The High Court refused the application for summary judgment and Mr and Mrs Stephens appealed to the Court of Appeal.

Company Law and Policy Stephens v Barron is a case at the intersection of company, tort and contract law. It raises feminist concerns about the relationship between tort law and company law norms, and the relative importance of facilitating entrepreneurialism and protecting the vulnerable. 1  2 

Stephens v Barron [2014] NZCA 82, (2014) 21 PRNZ 734. Accident Compensation Act 2001 (NZ), s 317.

310  Liesle Theron Capitalism and its underlying values are at the heart of company law. The company is the primary vehicle for facilitating wealth creation within mature liberal capitalist democracies, which are committed to promoting markets. The purpose and justification of the company is shareholder profit maximisation.3 The first aim of the Companies Act 1993 (NZ) stated in the preamble is ‘To reaffirm the value of the company as a means of achieving economic and social benefits through the aggregation of capital for productive purposes, the spreading of economic risk, and the taking of business risks’. Directors are not expected to weigh profit maximisation against other values.4 Directors’ duties are generally owed to the company and the most basic duty of the director is to act in good faith in what the director believes to be the best interests of the company.5 Corporate law encourages companies to take risks and seeks to protect them and their officers from liability for the consequences of their risk-taking activities. Investors are protected from personal liability for risks taken on their behalf by the doctrines of limited liability and separate legal personality, both seen as essential characteristics of the company. Directors are also protected by the doctrine of separate legal personality. By immunising shareholders from the consequences of the acts of their company, the doctrine of limited liability separates the benefits of involvement in a corporation from the responsibility and risk which flows from the investment.6 The doctrine of separate corporate personality treats the company as ‘an artificial legal entity, separate in law from its directors, managers, employees and related corporations’ and requires that the dealings of outsiders with it be treated as dealings with the entity.7 The company has been described as ‘an artificial individual that appropriates … human capacity for individual action’ or ‘human existence’ itself.8 The rationale for separate corporate personality is the assumption that directors and officers, as agents of shareholders, will not act efficiently and in particular will not take potential wealth-creating risks, if they are concerned about their liability. Likewise, direct liability of shareholders is seen as a disincentive to wealth-creating investments. The consequence is that: ‘In the name of efficiency it appears to be difficult to hold any human being responsible’.9 In seeking to regulate companies, policy makers have, however, been willing to impose some degree of liability on directors. Recent health and safety reforms in New Zealand10 indicate that importance is placed on direct incentives on the actors who are in a position to prevent harm, at the expense of the value traditionally placed on immunising directors 3  R Cohen, ‘Feminist Thought and Corporate Law: It’s Time to Find Our Way Up From the Bottom (Line)’ (1994) 2 American University Journal of Gender and Law 1, 14. 4  CA Budzynski, ‘Can a Feminist Approach to Corporate Social Responsibility Break Down the Barriers to the Shareholder Primacy Doctrine?’ (2006–2007) 38 University of Toledo Law Review 435, 436; see also: Cohen, ‘Feminist Thought and Corporate Law’ (n 3) 12–13, which describes an early case of minority shareholders successfully arguing that actions benefiting society at the expense of shareholders breached directors’ fiduciary duties. 5  Companies Act 1993 (NZ), s 131(1); P Watts, Directors’ Powers & Duties, 2nd edn (Wellington, Lexis Nexis, 2015) [5.2], [6]. 6  KH Hall, ‘Starting from Silence: The Future of Feminist Analysis of Corporate Law’ (1994) 7 Corporate and Business Law Journal 149, 163. 7  ibid 173. 8 KA Lahey and SW Salter, ‘Corporate Law in Legal Theory and Legal Scholarship: From Classicism to Feminism’ (1985) 23 Osgoode Hall Law Review 543, 550. 9  HJ Glasbeek, ‘More Direct Director Responsibility: Much Ado About … What?’ (1995) 25 Canadian Business Law Journal 416, 429–431. 10  Health and Safety at Work Act 2015 (NZ).

Stephens v Barron—Commentary 311 from personal liability in the interests of encouraging corporate risk-taking. These developments have given rise to a situation where a very high standard is placed on directors in terms of ensuring the health and safety of employees and others who enter the workplace, while at the same time directors are able to hide behind the corporate form when it comes to harm caused to third parties by the company’s business. The facts of Stephens v Barron raise this issue starkly because the case involved a company sending an employee into the private home of a customer. The courts in a number of jurisdictions have grappled with how to draw a line between the conduct for which a director should be held liable in negligence and what should be treated as conduct of the company alone. As a result, the courts have required the director to have adopted the wrongful conduct as his or her own in some way, ‘some deliberateness’ on the part of the director, the director to have ‘expressly or impliedly directed or procured the tortious act’, to have acted in a totally different capacity11 or to have ‘actual control’ of the ‘particular operations’.12 There are also important differences between closely held corporations and large publicly listed corporations in this context. In a closely-held company, the same individuals often perform the roles of investor, manager and employee. Stephens v Barron involved a small family company with Mrs Stephens as the only director and Mr Stephens in the role of manager. In this situation, the notion of separate legal personality appears most divorced from reality.13

Previous Case Law and the Court of Appeal’s Decision New Zealand courts determine whether a defendant owes a duty of care to a plaintiff in novel cases through a two-stage analysis which asks whether there is sufficient proximity between the parties,14 and whether there are policy considerations which point either in favour of or away from the imposition of a duty.15 The capitalist values which underpin company law can have a significant influence on both stages of the analysis. First they distance the defendant from the plaintiff through the doctrines of limited liability and separate corporate personality. Secondly they provide policy reasons for not imposing a duty, concerned with ensuring commerce, risk-taking and innovation are not deterred. Trevor Ivory Ltd v Anderson involved a one man company, Trevor Ivory Ltd, which was owned and controlled by Trevor Ivory.16 Mr Anderson contracted with the company for horticultural advice. The company, through Mr Ivory, advised Mr Anderson to spray couch-grass weed with Roundup, a herbicide. Mr Anderson’s employee carried out the spraying according to Mr Ivory’s instructions. A nearby raspberry crop was destroyed. The Court found 11 

Glasbeek, ‘More Direct Director Responsibility’ (n 9) 425–426. Body Corporate 202254 v Taylor [2008] NZCA 317, [2009] 2 NZLR 17 [41]. Stace J’s judgment discusses the line of authority which requires a finding that the director stepped out of his or her role: this collection [62]. 13  R Thompson, ‘Unpacking Limited Liability: Direct and Vicarious Liability of Corporate Participants for Torts of the Enterprise’ (1994) 47 Vanderbilt Law Review 1, 4. 14  The proximity analysis considers whether the defendant should reasonably have foreseen injury to his or her ‘neighbour’, in the sense of a person who is closely and proximately affected by the defendant’s conduct: S Todd, The Law of Torts in New Zealand, 7th edn (Wellington, Thomson Reuters 2016) [5.2.04]. 15 ibid. 16  Trevor Ivory v Anderson [1992] 2 NZLR 517 (CA). 12 

312  Liesle Theron the c­ ompany liable for breach of contract and negligent misstatement, but Mr Ivory was found not to be personally liable, despite the Court’s acceptance that it was important to the p ­ laintiffs to have Mr Ivory’s personal advice, and that it was represented that they were receiving it.17 Cooke P and Hardie Boys J (but not McGechan J) adopted a line of reasoning that the status of director could in itself immunise the director from personal liability in tort on the basis that his or her acts were to be treated solely as acts of the company. Cooke P considered that when he formed the company, Mr Ivory ‘made it plain to all the world that limited liability was intended’. While the plaintiffs may have given this little thought, ‘such a limitation is a common fact of business and, in relation to economic loss and duties of care, the consequences should … be accepted in the absence of special circumstances’.18 Likewise, Hardie Boys J saw the identification of directors with the company itself as the normal premise and considered that failing to recognise the capacity in which a director was acting ran counter to the purposes and effect of incorporation.19 He also articulated a concern about discouraging ‘[c]ommercial enterprise and adventure’.20 The argument that directors should be immune from liability in tort for the actions of the company has been rejected in the UK in Williams v Natural Life Health Foods Ltd, although the same ultimate result was reached.21 Directors were held to gain no special immunity nor special vulnerability merely by virtue of their office but they would be liable if they assumed such responsibility so as to create a special relationship with the plaintiff. Body Corporate v Taylor involved a leaky building claim by subsequent owners against the director who controlled the companies which either no longer existed or which were not in a position to meet damages claims.22 In that case a majority of four Court of Appeal judges held that the concept of limited liability is relevant, but not a decisive consideration, adopting the English approach. Young P, who delivered the judgment, explained that the concept of limitation of liability limits the financial risk of shareholders rather than providing directors (or senior employees) with a general immunity from tortious liability.23 Young P also noted that Trevor Ivory and Williams have no application at all to cases in which assumption of responsibility is not an element of the tort.24 Furthermore, someone who carries out activities that are potentially dangerous to life plainly owes a duty of care to all who may be adversely affected irrespective of whether the activities are carried out by that person to fulfil the contractual obligations of his or her employer, and the same principle applies to activities which may cause property damage.25 The view of commentators is that the Trevor Ivory reasoning (though not the result) can be taken to be overruled by Taylor.26 However the majority in Taylor still saw the approach in Trevor Ivory as applicable27 and separate corporate identity as relevant in so far as it 17 

ibid 524.

18 ibid. 19 

ibid 527. ibid citing C Evans & Sons Ltd v Spritebrand Ltd [1985] 1 WLR 317 (CA) 424. 21  Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830 (HL); Standard Chartered Bank v Pakistan ­Shipping Corp (Nos 2 and 4) [2002] UKHL 43, [2003] 1 AC 959. 22  Taylor (n 12). 23  ibid [31]. Chambers J preferred not to deal with Trevor Ivory until the Court really had to: [122]. 24  ibid [34]. 25  ibid [32]. 26 Watts, Directors’ Powers & Duties (n 5) [13.2]. 27  Taylor (n 12) [37], [43]. 20 

Stephens v Barron—Commentary 313 indicated ‘considerable caution’ before concluding that an employee has assumed personal responsibility where assumption of responsibility is an element of the relevant tort.28 A significant feature of these cases, which Young P’s analysis circles around without addressing directly, is that they all involved the negligent provision of services pursuant to a contractual relationship with the company. Negligent conduct in this context is likely to give rise to a different set of considerations than a negligence claim by a stranger, outside of any contractual relationship, where there can be no logical justification for requiring any separate assumption of responsibility by the agent.29 Young P referred to the concern about imposing a duty of care that is inconsistent with the ‘pattern of contractual relationships which the parties have chosen’30 and assumed that the claims in negligence against Mr Taylor ‘were marginal at best … because the legal structure he created for the development was plainly intended to distance him from any later claims by disappointed owners’.31 His Honour contrasted the reluctant approach of the courts to negligence in this context with that taken to Fair Trading Act 1986 (NZ) (FTA 1986) liability, where the courts ‘have not paid much heed to attempts by those in trade to distance themselves from liability to disappointed consumers’.32 Corporate form, and particularly the separate legal identity of companies, has not precluded personal liability on the part of senior employees in the FTA 1986 context.33 This difference between the FTA 1986 and tort contexts reflects the focus of the consumer laws on the consumer, and consumer expectations, in other words on the victim of the harmful conduct.34 The approach taken by the courts in the tort law context is focused on the party which has been involved in causing the harm, and respecting the structures that have been put in place to protect that person. Tort law assumes it is appropriate to respect the injurer’s attempts to distance him or herself from liability. This approach is unilateral and one-sided in circumstances where the person who is dealing with the company may well not appreciate the existence or implications of the structure, and may in fact rely on the individual, particularly in the case of a company like Trevor Ivory Ltd. It assumes commercial sophistication and an appreciation of the effect of the corporate form that many, especially vulnerable, people simply do not have. Stephens v Barron was the next case to raise the question of a director’s liability for negligent acts of other employees or officers. The Court of Appeal refused the appeal on the basis that there were factual issues in relation to the involvement of Mr and Mrs Stephens in the business and their role in the spraying at Mrs Barron’s home which needed to be determined before the court could resolve whether a duty of care should be imposed. In addition, the Court considered that this is an area where the law is not settled and what Mrs Barron sought to establish was novel. None of the policy considerations raised, including the doctrine of limited liability, was so strongly against the imposition of a duty of care 28 

ibid [33]. Goddard, ‘Corporate Personality—Limited Recourse and its Limits’ in CEF Grantham and RB Rickett (eds), Corporate Personality in the 20th Century (Oxford, Hart Publishing, 1998) 35. 30  Taylor (n 12) [32]. This consideration is treated as relevant by the majority in Stephens v Barron (n 1) [32]. 31  Taylor (n 12) [16]. 32  ibid [19]. 33 ibid. 34  Consumer protection laws can also be controversial to the extent that they are paternalistic and therefore at odds with the value placed on individual liberty, the sanctity of contract and personal responsibility: K Tokeley, ‘Consumer Law and Paternalism: A Framework for Policy Decision-making’ in S Frankel and D Ryder (eds), ­Recalibrating Behaviour: Smarter Regulation in a Global World (Wellington, LexisNexis NZ Ltd, 2013) 265. 29  D

314  Liesle Theron as to justify entry of summary judgment at that stage of the proceedings. However, the Court agreed with the High Court that the claim could not be described as strong ‘given the formidable obstacles to imposing a duty of this kind on a director or employee, as opposed to the company itself ’.35

The Feminist Judgment Feminists are concerned about the way the capitalist system perpetuates unequal distribution of wealth because these inequalities in turn perpetuate class and gender divisions. Companies are a key tool for achieving the ends of capitalism of wealth creation through free enterprise and exploitation of business opportunities.36 Western company law embodies masculine values of individualism, competition, hierarchy, aggression and strict classification of roles.37 These values explain the law’s focus on economic efficiency, protecting private property and only ensuring a basic level of protection of others. Feminist scholars are not alone in challenging these values and the corporate model. However, the feminist critique arguably challenges the model at a more fundamental level than others.38 In this context the feminist approach to the achievement of justice through an ethic of care or responsibility rather than through an ethic of rules, rights and entitlements, is particularly relevant. The ethic of care refers to a needs-based, contextual approach which involves decision-making by reference to differences among individuals.39 Feminists advocate replacing the tort concept of the ‘reasonable person’, which is seen as a concept which is permeated by economic efficiency and abstracts people from their suffering, with a tort theory that emphasises a duty to neighbours and the community, and measures concern and responsibility for the well-being of others and for protecting them from harm.40 As well as requiring a more proactive duty of care, the feminist ethic of 35 

Stephens v Barron (n 1) [33]. Hall, ‘Starting from Silence’ (n 6) 152. P Spender, ‘Women and the Epistemology of Corporations Law’ (1995) 6 Legal Education Review 195,196; Cohen ‘Feminist Thought and Corporate Law’ (n 3) 10. 38  The corporate social responsibility movement challenges these values and seeks to inject different values and a responsibility to the community: CA Budzynski, ‘Can a Feminist Approach’ (n 4) 438–444; Glasbeek. ‘More Direct Director Responsibility’ (n 9) 452. Other models that attempt to do the same are the socio-economic model which ‘assumes the existence of significant shared values and communal interests that deserve legal protection’ under a trust law rubric and the ‘constituency model’ which places responsibility on directors to mediate the interests of shareholders, employees, consumers and the community in determining appropriate courses of action. Another model is ‘personal morality’ which seeks to transfer qualities such as lawfulness, moral reflection and perception of morally salient features of the environment to the corporation. These models are discussed by Cohen, who argues that each of these theories ‘implicitly affirms the fragmentation and alienation between personal morality and productive use of property’: Cohen, ‘Feminist Thought and Corporate Law’ (n 3) 19–20. See also, eg, MJ Roe, ‘Can Culture Constrain the Economic Model of Corporate Law?’ (2002) 69 University of Chicago Law Review 1255 and other work on the role of values in business including, in New Zealand in the context of iwi corporate governance, for example G Harmsworth, Report on the Incorporation of Traditional Values/Tikanga into Contemporary Māori Business, Organisation and Process (Palmerston North, Landcare Research Report: LC/0405/058, October 2005). 39  L Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort’ (1988) 38 Journal of Legal Education 3, 28–30; AC Scales, ‘The Emergence of Feminist Jurisprudence: An Essay’ (1986) 95 Yale Law Journal 1373; BA White, ‘Economic Efficiency and the Parameters of Fairness: A Marriage of Marketplace Morals and the Ethic of Care’ (2005–2006) 15 Cornell Journal of Law and Public Policy 1, 16. 40  Bender, ‘A Lawyer’s Primer’ (n 39) 3. 36 

37 

Stephens v Barron—Commentary 315 care would replace the very limited duties of directors (to shareholders/the company only) with a wider responsibility to shareholders, employees, creditors and the community.41 This approach would have significant ramifications for the tort liability of those who arguably have a duty to monitor, train and control. It also suggests that ‘assumption of responsibility’ should not be a threshold or absolute requirement but is at most one fact to go into the mix in assessing proximity. Stace J’s feminist judgment is victim-orientated. She emphasises the vulnerability of the people who chose to use the Stephens’ services. Her judgment is mostly concerned with resisting notions that tort law should give way to concerns underpinning separate corporate personality. However, it also exhibits a concern with shifting tort law in the direction of an ethic of care, and rejects the requirement of a quasi-contractual assumption of responsibility. The feminist judge is concerned about the fragmentation that results from hierarchical structure, competition and the separation of ‘human activity and personality’ from ‘sources of ethical influence’.42 In addition to the real effect of reallocating risks, the law’s adoption of the doctrines of separate legal personality and limited liability also has a legitimising effect as it encourages individuals and society as a whole to think that this sort of shifting of risk is desirable.43 It stimulates a mentality that legitimises individuals artificially distancing themselves from the real life effects of their involvement in activities and, in the process, it decreases society’s perception of personal responsibility. As a result, Mrs Stephens as director, and Mr Stephens as manager, who were both ultimately in a position to control the risks taken by their company and, as shareholders, received the benefits of the risks taken in their business, are separated from liability for the harmful consequences of their business activities suffered by Mrs Barron. Consistent with feminist thinking which suggests that the doctrine of separate legal personality should not impede the full consideration of responsibility for negligent actions,44 Stace J calls for the reasons for caution in imposing duties on directors to be articulated and only treated as one consideration to be weighed in the balance. She rejects any distinction between directors and employees. She rejects the requirement that there be a special threshold test requiring a finding that a company’s agent stepped out of that role before liability will attach, focusing instead on the degree of control of a director over the operations. Finally, a closely held family company will raise particular issues where a wife is a director in the context of power imbalance and absence of information sharing. Women directors in family owned businesses are often excluded from the affairs of the business because of their role in the family and therefore have little ability to influence the activities of the company.45 An alternative approach to tort, which assesses behaviour by reference to a standard which requires responsible promotion of human safety and welfare, should be able to take into account the fact that some directors are not in a position to do so.46

41 

Budzynski, ‘Can a Feminist Approach’ (n 4) 438. Lahey and Salter, ‘From Classicism to Feminism’ (n 8) 553. Hall, ‘Starting from Silence’ (n 6) 168. See also BA White, ‘Feminist Foundation for the Law of Business: One Law and Economics Scholar’s Survey and (Re)view’ (1999) 10 UCLA Women’s Law Journal 39, 90. 44  Hall, ‘Starting from Silence’ (n 6) 173, fn 99. 45  ibid 175. Stace J identifies this issue at [72], this collection. 46  Bender, ‘A Lawyer’s Primer’ (n 39) 37. 42  43 

Stephens v Barron [2014] NZCA 82 Court of Appeal, (CA 804/12) O’Regan P, Stevens, Asher, Stace JJ

17 February; 21 March 2014

STACE J Introduction [41] The appellants, Mr and Mrs Stephens, ran a business providing carpet cleaning and prophylactic insect spraying. It is the insect spraying aspect of the services provided by the business that has led to the dispute with Mrs Barron. Essentially the service provided by the Stephens, through a corporate entity, involved going into houses and spraying carpets, furniture and fittings with insecticide. These are houses where ordinary people live with their families and children. The nature of the business carried with it potential ­hazards to human health. Further, if mistakes were made, that could also result in significant ­damage to property and associated financial loss. [42] The business run by Mr and Mrs Stephens was a small family one. I use the past tense, as the company which contracted with Mrs Barron and carried out the spray operation on Mrs Barron’s house, Auckland Carpet Steam “N” Dry Cleaning Ltd (ACSD), is no longer in existence. Mrs Stephens was the only director. Mr Stephens was the general manager, in charge of running the business on a day to day basis. The business employed staff to undertake the spraying operations. One such staff member, Mr Hutton, was given the job of spraying the home of Mrs Barron in December 2006. [43] The precise nature of what was sprayed inside Mrs Barron’s house is a matter of dispute between the expert witnesses. Mrs Barron says that people, including herself and her family, have consequentially suffered ill health. She says that her daughter delivered a child prematurely as a result of exposure to fumes that built up in the house, and that the child suffered oxygen deprivation (by reason of exposure to toxic fumes in utero) which has led to ongoing health issues. She also says that the attempts by, or on behalf of, Mr and Mrs Stephens to remedy the obvious damage to the property have been inadequate and/ or carried out negligently, and that monetary compensation offered is inadequate to compensate her and her family for the extent of their loss. An expert engaged by Mrs Barron, Mr Molony, has gone so far as to say that the property is not fit for human habitation and is incapable of remediation without demolition. [44] Mr and Mrs Stephens say that while there was evidence of an overspray, none of the substances sprayed inside Mrs Barron’s home was classified as hazardous. Mr Stephens says that he offered for ACSD to wipe off the overspray but was not permitted access to the property. He also says he arranged for a third party to attend at the property to wipe all surfaces but that business was also not permitted access. [45] Whatever substance was sprayed inside Mrs Barron’s home, it appears that the spraying was carried out in a way that resulted in an excess of chemicals having been

Stephens v Barron—Judgment 317 applied. The house was shut up after the spray operation for a period which appears to have increased the damage to the interior. Mrs Barron says that the inside of the house, including the walls and furniture, has suffered permanent damage as a result of the spraying conducted by Mr Hutton. [46] Due to s 317 of the Accident Compensation Act 2001, no-one may claim damages in respect of personal injury. However, Mrs Barron claims she has suffered significant financial loss related to the remedial work necessary to be carried out in respect of the house and also a decline in its value. The house has had to be entirely re-carpeted. That is the minimum required by way of repairs. Mrs Barron claims that the house is now uninhabitable as it is not possible to completely rid it of the toxic chemicals. An additional lingering effect of the spraying and the illnesses that have resulted from the spraying is that the house has acquired a certain reputation which has, according to Mrs Barron, detrimentally affected her ability to sell it. [47] This case is essentially about who is required to take legal responsibility for the damage caused by the spray operation conducted by Mr Hutton on behalf of ACSD. The company that employed Mr Hutton, being the business through which Mr and Mrs Stephens operated at the relevant time, is legally responsible for Mr Hutton’s actions, under the doctrine of vicarious liability. However, that company, ACSD, has now gone out of existence. No evidence was offered as to why this happened but shareholders are legally entitled to resolve to wind up a solvent company at any time. A liquidator was appointed for ACSD in 2009. [48] A new company, called Auckland Carpet Steam “N” Dry Limited, incorporated in 2007, is offering the same services as were previously offered by ACSD. Mr Stephens is the sole director of the new company. That company claims on its website to have over 30 years’ experience in the Auckland area. [49] Mrs Barron is asking the Court to find that Mr and Mrs Stephens are responsible for the property damage and financial loss resulting from Mr Hutton’s mistake. At this point the factual issues of what was sprayed inside the home and the nature and extent of the damage that resulted from the spray operation have not been determined. This Court is asked to assess if there is the possibility of a claim in negligence against either of Mr or Mrs Stephens. As this is a summary judgment application, Mr and Mrs Stephens have the onus of proving on the balance of probabilities that the plaintiff’s claim in negligence cannot succeed. The duty alleged to arise is to ensure that the business, involving the spraying of chemicals, was conducted in a proper and safe manner by making sure that an employee actually undertaking the spraying was trained appropriately and given the supervision required. [50] The question that comes before this Court is as follows: given that this is a summary judgment application, are the arguments against finding liability so compelling that we should dismiss the claim now, before the High Court has had a chance to consider the facts in more detail? [51] I agree with O’Regan P that the answer to that question must be no. [52] However, while O’Regan P is of the opinion that the claim cannot be described as a strong one, given the obstacles to imposing a duty on a director or employee, as opposed to the company itself, I am more optimistic about the possibility of a duty of care being found to exist. In particular, I do not see the “limited liability” policy argument as presenting any obstacle to finding the existence of a duty. There are several features of the case that point towards the existence of a duty of care, such as the nature of the business being conducted and the potential harm posed to the community by the business.

318  Victoria Stace The ­vulnerability of ­persons who chose to use the service is also relevant. Those persons trusted in the competence of the persons engaged to come into their private homes and conduct spray operations. The questions to be determined [53] The specific questions to be determined are: 1. Whether Mr and Mrs Stephens should have been granted leave to file the ­application for a summary judgment. Leave was required because the application was made after the filing of a statement of defence to the substantive claim. 2. Whether the evidence of what was in fact sprayed on Mrs Barron’s carpets is so inconclusive that her claim cannot succeed. 3. Whether it is so clear that the main pleaded duty of care cannot be established that a summary judgment should be entered for Mr and Mrs Stephens. The main pleaded duty of care is that Mr and Mrs Stephens had a duty to use care and skill in the supervision, instruction and training of Mr Hutton. 4. If it is clear that the main pleaded duty of care cannot be established, whether Mrs Barron might be able to argue that there is another duty of care such as to comply with specific regulatory requirements. [54] I agree with O’Regan P in relation to his findings on questions 1, 2 and 4. I also agree with his summary of the correct test to be applied when an application for summary judgment is made, in particular that the court must be satisfied that the claim cannot ­succeed and that the substantive merits of the case must be clear and capable of summary disposal. I wish to make further comments, however, in relation to question 3. The duty in relation to the supervision, instruction and training of Mr Hutton [55] Neither Mr nor Mrs Stephens was present at Mrs Barron’s house when the spray operation was carried out. Neither of them advised Mr Hutton on how to conduct this particular spraying operation. The issue therefore is whether it might be possible for Mrs Barron to argue that either of Mr or Mrs Stephens, as directors and/or employees of ACSD, had a duty to ensure that the business which involved spraying insecticide onto domestic carpets was conducted in a proper and safe manner, in particular by giving proper training and supervision to its employees. [56] Mr Parmenter, counsel for Mr and Mrs Stephens, has argued that there are three compelling policy considerations that count against the existence of a duty of care for either defendant, so that summary judgment should be entered in favour of Mr and Mrs Stephens. I agree with the comments made by O’Regan P in addressing and dismissing the first policy consideration, that trainers would be liable for the errors of their trainees, and also the third policy consideration, inconsistency with the contractual framework. [57] I wish to deal with the second of those policy considerations, namely that the imposition of a duty would be an attack on limited liability. Attack on limited liability [58] As pointed out by O’Regan P, the company law principle of limited liability protects shareholders, not directors or employees. “Limited liability” refers to the fact that shareholders in a company only have limited liability as regards the debts of the company. Their liability as shareholders is, in general terms, only to contribute the capital they agree to pay on their shares. The law, however unpalatable that may appear in some contexts, is that shareholders are not liable for the debts of the company except in exceptional

Stephens v Barron—Judgment 319 c­ ircumstances, which do not apply here. As Tipping J stated in Chen v Butterfield in 1996,17 the corporate veil should be lifted only if in the particular context and circumstances its presence would create a substantial injustice which the Court simply cannot countenance. However, this case is not about limited liability. Mr and Mrs Stephens are not being sued in their capacity as shareholders. [59] This case is about the ability of those involved with and who represent and are the human face of a company, namely its directors and employees (in particular those in control of managing the business), to shelter behind the corporate form. At its essence this case is about the intersection of company law principles and tort principles. The issue here is: what does the law of obligations require of those who are the human face of a corporate entity? In particular, is the claim made against Mr and Mrs Stephens so inconsistent with the principle of limited liability or the more fundamental company law principle of separate corporate personality that the Court should allow this summary judgment application to succeed? The answer to that must be no. Trevor Ivory and other cases on liability of company directors [60] I acknowledge that this Court has previously indicated that directors and other employees might be shielded from liability in negligence by reason of the imposition of a corporate entity between them and the person claiming to have suffered a loss. An exception this Court previously recognised is where the facts indicate the defendant personally assumed responsibility towards the plaintiff. [61] In 1991 this Court held, in Trevor Ivory v Anderson,18 that a director’s actions when acting on behalf of the company will normally be identified with the company so that the director will not incur personal liability in tort to a third party, unless the facts indicate that the director personally assumed responsibility for his or her actions. Assumption of responsibility was also required in Williams v Natural Life Health Foods19 in 1998, where the House of Lords said if a person incorporates a company and transfers his or her business to it, from then on they act in the capacity as agent for the company. In order to establish personal liability in tort for a wrong done to a third party, there must have been an assumption of responsibility such as to create a special relationship between the third party and the director (or other employee).20 Williams is still followed by the English courts today: see Sainsbury’s Supermarkets v Condek.21 [62] These two authorities suggest that the starting point in relation to a tortious claim is that the actions of a company director or other employee acting on company business will not give rise to liability to a third party who suffers loss, unless the director (or other employee) has personally assumed responsibility. This requires finding that the director or employee can objectively be said to have stepped out of their role as acting for the company and into the role of acting as an independent individual. An example of where this was found to have happened, by way of illustration, was in Fairlane Shipping Corporation v Adamson,22 where the director of a warehousing company wrote a letter on personal notepaper offering to store the goods on “his” premises.

17 18 19 20 21 22

Chen v Butterfield (1996) 7 NZCLC 261,086 at 261,092. Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517 (CA). Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830 (HL). At 837. Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd [2014] EWHC 2016 (HC, QBDTCC). Fairline Shipping Corporation v Adamson [1975] QB 180.

320  Victoria Stace [63] Trevor Ivory must, as O’Regan P points out, be read in light of Body Corporate 202254 v Taylor.23 In Taylor this Court was asked to consider the personal liability of a company director for the consequences of construction of a residential housing development that suffered from leaky building syndrome. William Young P said that the plaintiff will usually have to show an assumption of personal responsibility by the defendant to the plaintiff which is akin to acceptance of a contractual obligation:24 While the relevant cases are not altogether coherent in either results or reasoning, their overall drift suggests that the claims in negligence against Mr Taylor are marginal at best. This is because the legal structure he created for the development was plainly intended to distance him from any later claims by disappointed owners. [64] After reviewing both Trevor Ivory and Williams, William Young P rejected disattribution, limited liability and contractual inconsistency as grounds on which to deny the claim in tort against the company director. He acknowledged that if “assumption of responsibility” was an element of the tort in question, then assumption of responsibility must be established. He then stated:25 Further, picking up points already made, to preserve the existing framework of the law of contracts and the idea that a corporation has a legal identity which is separate from those of the individuals involved in it, considerable caution is required before concluding that an employee has assumed personal responsibility. [65] Whatever is at the root of this attitude of caution, be it the need to respect company law principles, the concern about discouraging good people from acting as directors, or a general deference to commercial autonomy, that caution should be articulated and clarified and should in my view be only one consideration to be weighed with ­others in the context of a claim in the tort of negligence. Any distinction between directors and other employees which makes it harder to establish that directors owe a duty of care (by, for example, requiring a threshold test of assumption of responsibility) is unsustainable, as that would mean a director is less responsible for his or her actions than a mere employee. Importantly, the protectionist concerns underlying the decisions of Trevor Ivory and ­Williams, and deferred to in Taylor, are inconsistent with the underlying principles of the law of obligations. Tort law aims to allocate responsibility for loss. The law of negligence addresses allocation of risk between parties, and allows the balancing of all relevant considerations. Tort law is the appropriate forum in which to assess the liability of company directors and other employees, and the notion that there is a special threshold test requiring a finding that either a director or employee stepped out of his or her role as agent of the company before liability will attach is to pay undue deference to the importance of upholding the interests of commercial enterprise. [66] Persons, directors, employees or otherwise, should be required to take responsibility for their negligent actions, if there is the requisite degree of proximity and the policy considerations on balance favour the existence of a duty. Numerous situation-specific considerations will likely be relevant to that assessment: the nature of the business being conducted by the company in question, for example, and whether that posed a significant risk of harm to the community. If there was a risk of serious detriment to persons who

23 24 25

Body Corporate 202254 v Taylor [2009] 2 NZLR 17 (CA). At 23. At 30.

Stephens v Barron—Judgment 321 are particularly vulnerable, for example, that is likely to be a factor weighing in favour of finding a duty. Here, because the business operations involved going into private homes, if the work was done negligently then that was likely to impact on families and all who live in those homes. If the family has to move out, for example, while repairs are being undertaken, that can have a significant impact on family members’ lives. [67] In addition, if the people likely to be detrimentally affected are not in a position to protect themselves from the risks posed by the defendants’ actions, that vulnerability will be a relevant consideration. Here, domestic home owners, like Mrs Barron, are not in a position to assess the safety of the chemicals used or the competence of the persons engaged to carry out spray operations, but rely on the expertise of the company offering the services, and the company’s agents who are its human face. [68] In Taylor, William Young P did not clarify when assumption of responsibility is an element of the tort. Chambers J in his dissenting decision found that it was not an element of the tort of negligence (as opposed to negligent misstatement). I cannot see any good reason to perpetuate a distinction between actions in negligence and negligent misstatement. Assumption of responsibility, in the sense of taking on a quasi-contractual obligation to the plaintiff, would appear not to be an element of either tort, where the claim is made against a defendant who is not a director or employee. Rather, assumption of responsibility is what the court will impute after a duty of care is found to exist. This is the case whether the action is brought in negligence or negligent misstatement. I refer in particular to the cases of Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd,26 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd27 and AG v Carter.28 [69] In the present case, Mrs Barron is claiming in general negligence against Mr and Mrs Stephens. I do not therefore need to decide if personal assumption of responsibility remains an element of the tort of negligent misstatement where the defendant is a director or employee. Suffice to say that personal assumption of responsibility in the sense of taking on a quasi-contractual obligation towards the plaintiff is not in my view an element of the tort of negligence. I note this was also the view of Associate Judge Doogue who heard this case in the High Court.29 [70] None of this should be taken to suggest that directors or other employees are liable for the actions of their company/employer by reason solely of having that position. Companies are separate legal entities. If a duty of care arises in relation to either of Mrs Stephens (the director) or Mr Stephens (the general manager) it would be because all the facts establish the requisite relationship of proximity. The involvement of Mr and Mrs Stephens in the business, the degree of control each of them exercised and their direct role in the spraying at Mrs Barron’s home are all matters which need to be established before the question of the imposition of a duty could fairly be resolved. Also relevant is the extent of the instruction and supervision needed in relation to Mr Hutton (in particular, his previous experience, if any, of working in an organisation undertaking similar spraying operations) and the training actually given to him. I note also (and flag as potentially relevant) the responsibilities on directors under relevant legislation such as the Hazardous Substances and New Organisms Act 1996 (under which directors can be responsible for the company’s mismanagement of hazardous substances) and the obligations proposed under

26 27 28 29

Rolls -Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324. South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282. AG v Carter [2003] 2 NZLR 160. Barron v Hutton [2012] NZHC 2183 at [28].

322  Victoria Stace the recently introduced Health and Safety Reform Bill (which will require directors to take ultimate responsibility for the health and safety duties imposed on the company). Relevance of the defendant’s degree of control [71] If the defendant has control over the company’s operations, that control can be relevant to establishing proximity in the duty of care inquiry. The decision of Hardie Boys J in Morton v Douglas Homes Ltd,30 which predated Trevor Ivory, and which has been followed by many subsequent High Court cases, focused on the degree of control the defendant director or other employee had over the operations of the company, when assessing whether a duty of care arose. Hardie Boys J said:31 The relevance of the degree of control which a director has over the operations of the company is that it provides a test of whether or not his personal carelessness may be likely to cause damage to a third party, so that he becomes subject to a duty of care. It is not the fact that he is a director that creates the control, but rather that the fact of control, however derived, may create the duty. There is therefore no essential difference in this respect between a director and a general manager or indeed a more humble employee of the company. Each is under a duty of care, both to those with whom he deals on the company’s behalf and to those with whom the company deals in so far as that dealing is subject to his control. [72] In the present case we do not know from the evidence available what the precise involvement of either Mr or Mrs Stephens in relation to the supervision, training or instruction of Mr Hutton was, or what was customary in this line of business. It is not known what level of experience Mr Hutton had or how long he had been employed by ACSD. All of this has a bearing on whether there was the necessary proximity to establish a duty of care. It is clear that Mr and Mrs Stephens ran a business that was involved in putting potentially hazardous chemicals into people’s homes, by spraying insecticide onto carpets, furniture and fittings. The nature of the business involved potential hazards to human health and also potential significant disruption to and financial impact on families. The company was a small family-run one where either or both of Mr and Mrs Stephens would quite possibly have been in charge of employing, supervising and/or training staff and would also quite possibly have been involved in ensuring that proper systems were in place to ensure business operations were conducted safely. It may be that Mrs Stephens, while a director, was merely a nominee or puppet of Mr Stephens and in this regard I note she is not a director of the new company, Auckland Carpet Steam “N” Dry Limited. This would not affect her obligations under company law. It could result in Mr Stephens having additional company law obligations as a deemed director. It might, depending on the circumstances, be a relevant consideration in the assessment of her tortious obligations. Decision [73] In these circumstances there can be no doubt that the case must be remitted back to the High Court in order that all the evidence can be assessed. To suggest that out of deference to company law principles the Court should not be given the chance to address the duty of care question is untenable. That deference belongs, if at all, to an earlier time

30 31

Morton v Douglas Homes Ltd [1984] 2 NZLR 548 (HC). At 595.

Stephens v Barron—Judgment 323 when the courts were concerned at all cost to uphold the bastion of commercial enterprise. Today the courts are not constrained by these notions. Taking personal responsibility and caring for the welfare of others who might be affected by one’s actions are more important standards that the law seeks to uphold. [74] The appeal must therefore be dismissed. Appeal dismissed

324 

Part III

Land and Natural Resources

326 

Customary Rights

328 

Commentary on Bruce v Edwards Taonga Tuku Iho: The Generational Treasure of Land JACINTA RURU

Introduction Bruce v Edwards was a 2002 New Zealand Court of Appeal decision that originated in the Māori Land Court with a Māori couple seeking to change their South Taranaki land from Māori freehold land to the predominant category of land called ‘General land’ to enable its sale to a Pākehā farming pair.1 Mr and Mrs Edwards (the vendors) had signed a contract of sale and purchase with Mr and Mrs Bruce (the purchasers) subject to the Māori Land Court approving the land’s change of status to a General land title. The Court issued the change of status order expecting this would assist the Edwards’ to further develop their land by raising financial development capital. The Court was never told the order was sought to action the sale. It was only after the sale contract had become unconditional that those who had a statutory right of first refusal learnt of the pending sale. Te Ture Whenua Maori Act (Maori Land Act) 1993 (NZ) (Te Ture Whenua Maori) provides preferred classes of alienees relevant to the vendor the right of first refusal to help ensure the little Māori freehold land that exists remains with those who have a genealogical blood relationship with it. Edwards’ wider family members (the whanaunga), as the preferred classes of alienees, immediately lodged a caveat against the land title and sought an order to rehear the change of land status in the Māori Land Court.2 The Court issued the order but both the Edwardses and Bruces challenged this, first in the High Court and then in the Court of Appeal seeking instead specific performance of the contract for sale. The High Court held that Edwards’ whanaunga could apply for a change of land status rehearing order in the Māori Land Court.3 In contrast, the Court of Appeal held that the sale should go ahead. In a subsequent application from Edwards’ whanaunga, the Court of

1  Bruce v Edwards [2002] NZCA 294, [2003] 1 NZLR 515. For definitions of the different land statuses in New Zealand: see Te Ture Whenua Maori, s 129. 2  The Māori Land Court is a specialist court of record: see Te Ture Whenua Maori, s 6. For a definition of preferred classes of alienees: see s 4. 3  Edwards v Maori Land Court (HC Wellington CP 78/01, 11 December 2001).

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Appeal refused leave to appeal the decision to New Zealand’s then final court of appeal, the Privy Council.4 This case is important because it tested the long-standing cultural biases of the then top domestic appeal court based in Aotearoa New Zealand to consider the new intent of Te Ture Whenua Maori. Its long title emphasises it as ‘An Act to reform the laws relating to Maori land in accordance with the principles set out in the Preamble’. The Preamble, first written in the Māori language and then partly translated into English, emphasises the new importance of retaining Māori land ‘in the hands of its owners, their whanau, and their hapu’. Surprisingly, the cornerstones of Te Ture Whenua Maori did not appear in the Court of Appeal judgment. Bruce v Edwards came to be seen as part of a trilogy of Court of Appeal cases decided in the first decade of the enactment of Te Ture Whenua Maori in which the Court failed to acknowledge the purpose and potential of the Act as a statute of reform.5 Bruce v Edwards was a complex case with relevant facts that span more than a hundred years. It raised hard questions concerning not just Māori land law interpretation issues, but also how that law intersects with issues of contract law (namely the ordering of specific performance) and conveyancing law (specifically equitable interests and indefeasibility issues arising from registration). It was a landmark decision of its time for understanding the judicial power of interpretation and application of the law when two systems of law and cultural understandings of land clash.

A Brief History of Māori Land Law As accepted by the Court of Appeal in Bruce v Edwards, ‘Maori land legislation has, as is notorious, a long and tangled history’ that dates back to 1862.6 Following the signing of the Treaty of Waitangi in 1840, the British Crown set about acquiring land from Māori and by the early 1860s had become the owner of most of the land in the South Island and the lower part of the North Island (constituting about 60% of New Zealand’s land mass and where about 10% of Māori lived). The Crown then sold-on this land as General freehold land to the new European arrivals. In the 1860s, legislation enabled the Crown to acquire most of the remaining Māori lands in the North Island through outright confiscation and the more subtle but equally successful waiver of the British Crown’s right of pre-emption in favour of the creation of initially called Native freehold land titles.7 The Native Land Court (now named the Māori Land Court) was established with the primary purpose to encourage

4 

Bruce v Edwards (CA 19/02, 27 February 2003). Attorney-General v Maori Land Court [1999] 1 NZLR 689 (CA) and McGuire v Hastings District Council [1999] NZCA 138, [2000] 1 NZLR 679. The Privy Council later ruled on the McGuire case: see McGuire v Hastings District Council [2000] UKPC 43, [2002] 2 NZLR 577. For an analysis of these cases see N Tomas, ‘Jurisdiction Wars—Will the Maori Land Court Judges Please Lie Down’ (2000) 9 Butterworths Conveyancing Bulletin 33; N Tomas, ‘Me Rapu Koe Te Tikanga Hei Karo Mo Nga Whenua—Seek the Best Way to Safeguard the Whenua’ (2000) 9 Butterworths Conveyancing Bulletin 49; and N Tomas, ‘Maori Land—Te Ture Whenua Maori Act and the Resource Management Act’ (2002) 10 Butterworths Conveyancing Bulletin 22. See also J Ruru, ‘Bruce v Edwards: The Court of Appeal’s latest ruling on Maori land’ (2003) 10 Butterworths Conveyancing Bulletin 169. 6  Bruce v Edwards (n 1) [61]. 7  Native Lands Act 1865 (NZ). 5 See

Māori land owners to transfer their customary holdings into a freehold title that would then permit them to alienate their lands as they wished.8 In reality, many Māori freehold land owners were immediately forced to sell all or part of their lands to pay for financial debts incurred in the transfer process (for example mandatory court fees and survey costs). Up until 1993, the legislative intent had been mostly to seek a conversion of all Māori land titles into General titles, thereby obliterating the need for specialist Māori land law. Today, at most, 6% of all land in New Zealand is classified as Māori freehold land. These titles mostly have multiple owners, are not inhabited, and have little arable value. Te Ture Whenua Maori marked the new era of Parliamentary intent for the little remaining Māori land. The principles in the Preamble are reinforced throughout the Act, especially in ss 2 and 17, and recognise that: —— the Treaty of Waitangi concerns the exchange of kāwanatanga for the protection of rangatiratanga; —— land is a taonga tuku iho of special significance to Māori people; —— those acting under the Act must: —— promote the retention of that land in the hands of its owners, their whānau, and their hapū, and —— facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whānau, and their hapū; and —— the Māori Land Court is a specialist court that must assist the Māori people to achieve the implementation of these principles. A feature of Te Ture Whenua Maori is that it empowers preferred classes of alienees (defined as children of owners, whanaunga (blood relations) of owners, other beneficial owners, and descendants of former owners) with rights of first refusal if the land is proposed to be sold.9 Te Ture Whenua Maori states that the alienating owners must give the right of first refusal to prospective purchasers who belong to one or more of the preferred classes of alienees.10

The Two Sides At issue in the Bruce v Edwards case were two ‘innocent’ parties—the Bruces and Edwards’ whanaunga—who both sought ownership of the land. The Bruces argued that they purchased the farm without any wrong doing. They proceeded with the contract on the basis that the land would be legitimately converted to General land. The Bruces emphasised that they had changed their position to their detriment in reliance on the contract for sale and would suffer if the transaction could not proceed. They sought specific performance of the contract to become the registered owners of the land.

8  See generally R Boast, The Native Land Court Volume 1 1862–1887: A Historical Study, Cases and Commentary (Wellington, Thomson Reuters, 2013). 9  Te Ture Whenua Maori, s 4. 10  Note that the Court of Appeal heard this case when s 147(2) was in force. This section was repealed in 2002 and replaced with s 147A.

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The Edwards’ whanaunga, as members of the preferred classes of alienees, argued that if the transaction proceeded they would be forced to suffer the brunt, not of something that they did or did not do, but rather of the deliberately misleading actions of the Edwards’ solicitor in failing to inform the Court of the actual reason for the change of status application. They emphasised that the sale would result in the loss of Māori land in Māori hands contrary to the intent of Te Ture Whenua Maori. They sought an order for the Māori Land Court to rehear the status order that they argued would result in the land reverting to Māori freehold land. If the Edwards then proceeded with the sale of the land, then their right of first refusal as preferred classes of alienees would be revived.

The Decision of the Court of Appeal Blanchard J, who delivered the judgment of the Court of Appeal on behalf of himself, Keith and Glazebrook JJ, held that by 12 May 2000—the date on which the change of status order was registered—the Bruces had acquired an ‘untainted’ equitable interest in the farm, based on the fact that the farm was General land, the Bruces were party to an unconditional contract to purchase the farm, and they had come to the Court innocent of any wrongdoing. The Edwards’ whanaunga had no interest in the farm equal to the Bruces’ interest because the right of first refusal would have arisen later (as it could only be revived if the status of the land reverted back to Māori freehold land), and the right of first refusal would in any event be a lesser right because it is not an equitable interest in land. Thus, agreeing with the High Court that this was not a case of competing claims in equity between the parties, the Court considered what it saw as the fundamental issue: the effect that s 88(1) of Te Ture Whenua Maori could have on the Bruces’ equitable interest if the Māori Land Court was given the opportunity to rehear the status order application and consequently annulled the registration of its original change of status order. If the Māori Land Court used its jurisdiction under s 43(5) of Te Ture Whenua Maori to cancel the registered status order, the later annulment order would be transmitted under s 125 for registration. As the Court recognised, if s 125 alone governed the situation, then the registration of an annulment order would destroy the Bruces’ equitable interest. Attention then turned to s 88(1) which appeared to offer some protection to equitable interests acquired in good faith: Where, whether pursuant to any provision of section 86 or section 87 of this Act or otherwise, any order … is amended or cancelled, the amendment or cancellation shall not take away or affect any right or interest acquired in good faith and for value before the making of the amendment or cancellation. [emphasis added]

Ronald Young J, in the High Court, had addressed this section by holding that the expression ‘or otherwise’ in s 88(1) did not have the effect of applying the section to orders made on a rehearing under s 43(5), which would have applied to the Bruces in this matter. He reasoned that while s 88 appeared in pt 3 of the Act headed ‘provisions relating to both Courts’, it had no application to orders annulled or varied on a rehearing under s 43. It had to be assumed, he said, that the use of different words had a reason and a purpose. Therefore, the Bruces could not benefit from the protection offered under s 88(1).

However, Blanchard, Keith and Glazebrook JJ in the Court of Appeal held otherwise. They reviewed the history of the protection offered by s 88(1) and its equivalents within Māori land legislation and concluded that that s 88(1) did operate to protect the Bruces equitable interest against the consequences of any reversal (annulment) of the change of status order at a rehearing. It would therefore not be proper for the Māori Land Court to make such an order and send it for registration. Therefore, they resolved that the Bruces must be entitled to become the registered owners of the land. They could not fathom any other result, for:11 The Bruces … would … suffer considerable hardship if refused specific performance. They would have to vacate the farm where they have been living for the past two years and would have to relocate their livestock. They are farmers by occupation but would have no farmland. They would be put in the position of having to try to acquire a comparable farming property at current market values … the value of dairy farms in Taranaki had risen by about one-third since the contract was made … it is clear that the Bruces would be considerably disadvantaged …

In comparison to the Bruces, they stated that whilst the Edwards’ whanaunga would suffer ‘hardship’ (but not ‘considerable’ hardship), they simply did not have an equitable interest in the land. Blanchard J stated:12 [W]e have concluded that the Bruces are likely to suffer considerable hardship unless specific performance is ordered. We recognise the sorrow the loss of the land will cause to [the Edwards’ whanaunga], but their prospects of obtaining it if specific performance is denied are not good.

This judgment meant that the Bruces obtained the property and the Edwards made a $1 million sale profit in little more than seven years from their own purchase. At that point, the Edwards’ whanaunga lost all legal connections to their ancestral land despite it being a taonga tuku iho of special significance to them. They have no special legal recourse to the land in the future. The Court of Appeal simply declared it too ‘complex’ to make it a condition of the specific performance order that the Bruces grant a contractual right of first refusal to the Edwards’ whanaunga in the event of a future alienation.13

Johnston and Hori Te Pa JJ’s Mana Wahine Judgment Johnston and Hori Te Pa JJ provide a powerful dissenting Court of Appeal judgment demonstrating the possibilities for respectful judgment writing from a mana wahine perspective and a mana-enhancing whenua and tikanga perspective. They are proud wahine Māori judges.14 While their judgment retains the usual structure of a judgment

11 

Bruce (n 1) [71]. ibid [73]. 13  ibid [74]. 14  Note in reality few Māori sit on the appeal courts. There has only been one Māori woman sit on the High Court (Dame Justice Lowell Goddard QC) and no Māori women have been appointed to the Court of Appeal or Supreme Court. For an excellent discussion see S Te A Milroy, ‘Māori Women Judges in Aotearoa’ (2016) March Māori Land Court Judge’s Corner, www.maorilandcourt.govt.nz/assets/Documents/Publications/MLC-2016-MarJudges-Corner-Milroy-J.pdf. 12 

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in a c­ommon-law jurisdiction it does contain a number of novel elements for its time from writing in the first-person voice, the frequent prioritisation of the use of Māori language and macrons, the endorsement of land as whenua and the acknowledgement of the long fraught struggle by Māori to retain their land in the hostile environment of colonisation.15 The overall power of Johnston and Hori Te Pa JJ’s judgment is especially noticeable in how they acknowledge the status and influence of Māori law as a source of law in New Zealand. Such a judgment in 2002 would have marked the first for a Court of Appeal judgment to so entirely welcome Māori law into its decision-making. Te Ture Whenua Maori inspires this very action by valuing Māori relationships with land as a taonga tuku iho.16 Johnston and Hori Te Pa JJ embrace this with acknowledging the whakapapa of the land beginning with the female agency of this place—Papatūānuku as earth mother— and the long generations of Māori families whom have been sustained from the waiū (breastmilk) of these lands.17 Whakapapa and kin connection are central to Māori because such connection is the ‘glue’ that holds the Māori world together.18 Johnston and Hori Te Pa JJ accept this worldview by choosing to refer to the land in dispute not by its technical name of Oeo B2 Block but rather as ‘the whenua’. Whenua translates to mean land but also ­placenta, reflecting the Māori perspective of inherent ancestral connections between oneself and land. The retelling of the facts in a case by a judge is a prominent marker of the judge’s own biases. Johnston and Hori Te Pa JJ’s recitation of the facts gives voice to the Māori histories on the land that have been mostly silenced in state and common law. Their facts tell of a place of long conflict, battle, and dispossession with some tenuous repossession. They acknowledge that ‘many of the scars associated with colonisation have yet to heal’.19 This context matters because at the heart of this court decision is a crossroad choice that either endorses the colonial dispossession or repossession of Māori whānau land. Johnston and Hori Te Pa JJ position their judgment firmly among the purpose and principles of Te Ture Whenua Māori, recognising the essential point of difference between Māori freehold land and General land: Māori freehold land is not for individual named owners to deal with as of unhindered right. Inherent within the preamble of Te Ture Whenua Māori is the undefined expression that land is a taonga tuku iho. The Te Aka Māori Dictionary Online provides a general English translation of this phrase as an: ‘heirloom, something handed down, cultural property, heritage’.20 Johnston and Hori Te Pa JJ’s conclusion

15  To view an alternative Indigenous judgment writing style, see V Napoleon, ‘Tsilhqot’in Law of Consent’ (2015) 48 University of British Columbia Law Review 873. 16 The groundwork for more recognition of Māori law was beginning to emerge: see ET Durie, Will the Settlors Settle? Cultural Conciliation and Law (1996) 8 Otago Law Review 449 and New Zealand Law Commission, Determining Representation Rights under Te Ture Whenua Māori Act 1993: An Advisory Report for Te Puni Kokiri (Wellington, NZLC SP8, 2001). Today, 15 years on, there is growing evidence of the appellate court judges becoming more comfortable with Māori law as ‘a genuine body of law, entitled to respect as such’ across a number of areas (Leef v Bidois [2017] NZHC 36 [50]). 17  Johnson and Hori Te Pa JJ, this collection [78]. 18  J Williams, ‘Lex Aotearoa: An Heroic Attempt to Map the Maori Dimension in Modern New Zealand Law (Harkness Henry Lecture)’ (2013) 21 Waikato Law Review: Taumauri 4. 19  Johnson and Hori Te Pa JJ (n 17) [83]. 20  JC Moorfield, Te Aka Māori Dictionary Online (maoridictionary.co.nz).

­ onours this notion by finding a solution that emphasises the importance of ensuring h the land remains with the status of Māori freehold land. They presume that it is of the utmost importance that the land stays in Māori ownership or at least within reach of Māori ownership by protecting the customary owners’ right to first refusal. In contrast, the Blanchard J-led judgment was devoid of Māori law and history and the cornerstone principle of retention of Māori land in Māori hands in the new reformed Te Ture Whenua Maori. Absent was any consideration of the preamble or ss 2 or 17, ­including a purposive approach to statutory interpretation in view of the legislation’s dual goals of land retention and development, for example, in regard to determining whether the ­protection of s 88(1) applied to the Bruces. Instead, the judgment prioritised English inherited land transfer concepts such as indefeasibility and English cultural uses of land: ­farming. It was a judgment made from a Western and individualistic perspective focusing on the ‘considerable hardship’ on the Bruces. In their dissenting mana wahine judgment Johnston and Hori Te Pa JJ also identify the wrong done in the first Māori Land Court hearing where the Edwards presented a case that amounted to deliberate concealment and deception in seeking the change of status order. Johnston and Hori Te Pa JJ dismiss the Bruces’ appeal. They concur with the High Court by allowing the rehearing in the Māori Land Court and putting the application for specific performance on hold until after that decision is made.

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5

Bruce v Edwards

10 Court of Appeal  Wellington 17, 18 September; 18 November 2002 Keith, Blanchard, Glazebrook, Johnston and Hori Te Pa JJ 15

20

25

30

35

40

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CA 19/02

JOHNSTON AND HORI TE PA JJ. Ngā mihi—Introduction [77] The story of Taranaki whenua began over 80 million years ago, when Aotearoa was first formed. The sacred mountain that dominates the landscape was formed soon after. Maunga Taranaki was named by the first people to settle the whenua approximately 1000 years ago. Those early arrivals are the ancestors of the Aotea, Kurahaupō and Tokomaru iwi who are the Māori customary owners of Taranaki today according to tikanga Māori. [78] Many of the descendants of the Aotea, Kurahaupō and Tokomaru people—the whānau, hapū and iwi of Taranaki—continue to live on the whenua today, exercising their rights and obligations as rangatira and kaitiaki of their customary lands. They are guided by the wisdom of the Taranaki rangatira Te Whiti o Rongomai who said, “He whenua te waiū whakatipua ngā tamariki”—“land is the sustenance for the survival of the children”. [79] About 250 years ago, Pākehā settlers arrived in Taranaki. [80] In 1770, James Cook, a Pākehā explorer renamed the sacred maunga, “Mount Egmont” after John Percival, second Earl of Egmont. Over time, important places on the Taranaki landscape were renamed, with Pākehā words and meanings replacing those of te reo Māori. [81] The arrival of Pākehā meant the beginning of aggressive colonisation in Aotearoa. In Taranaki, this led to periods of devastating warfare and resistance between 1845 and 1900 as the struggle over land and resources between the settler government and Māori intensified. [82] By 1900, most Taranaki whenua had been confiscated from the whānau and hapū by the Crown and given to Pākehā to settle. Confiscation, or raupatu as it became known by Taranaki whānau whānui, was effected by a combination of military, political and legislative tools such as the New Zealand Settlements Act 1863. Some land was retained for its Māori owners by way of small reserves. In most cases, this land was insufficient to sustain whānau and hapū. Even where provision was made for land to be returned to Māori as Māori freehold land, it was most often not returned to its original owners. [83] Since 1900, Māori and Pākehā families have lived side by side in Taranaki, more or less peacefully. But many of the scars associated with colonisation have yet to heal. Long-established Pākehā farming families such as the Bruce family, the appellants in this case, are aware of the history of Taranaki whenua and its impact on whānau and hapū in Taranaki. Mr Tito and Mr Manuirirangi, the third appellants, and the hapū they represent, live with the effects of colonisation every day.

[84] Oeo B2 Block is the technical name for the land at the heart of the dispute in this case. It is one of the last remaining areas of Māori freehold land in Taranaki. Oeo B2 Block (“the whenua”) is an area of 132.7484 hectares of land located in South Taranaki, between the towns of Manaia and Opunake. This whenua was one of the areas reserved for whānau and hapū following the raupatu of 1881. It lies in the shadow of Maunga Taranaki in the area known as Oeo by its Māori customary owners. [85] The whenua originally had the legal status of Māori customary land, owned ­collectively by the hapū of Ngāti Tama-Ahuroa and Ngāti Titahi, hapū of Ngāti Ruanui iwi. The hapū acquired the whenua in pre-European times by way of several take, including taunaha whenua and take raupatu. By the time of Pākehā settlement in Taranaki in the ­mid-1800s, the mana whenua of the hapū was well-established over Oeo. [86] In 1881, the whenua was illegally confiscated by the Crown, following the Taranaki wars of the 1860s and 1870s. As the Waitangi Tribunal has determined, the confiscation of Taranaki whenua from its owners was a serious breach of the Treaty of Waitangi at international law, and a fundamental breach of the rights of Māori at international law to be protected from illegal invasion and confiscation of their traditional lands and resources. [87] In the 1880s, the Oeo block was granted to Hone Pihama, rangatira of Ngāti Tama-Ahuroa, in six separate titles. For the purposes of the Land Transfer Act 1952, the whenua was given the status of Māori freehold land. This grant was made on the basis that the whenua would continue to be te waiū, the nurture and sustenance, of the whānau and hapū of Ngāti Tama-Ahuroa and Ngāti Titahi still residing around Oeo at that time. This was the expectation of the hapū according to Māori customary law. [88] The whenua has been held as Māori freehold land by members of the hapū and in particular by the direct descendants of Hone Pihama. The Edwards whānau, the first respondents, as well as the whānau and hapū represented in this case by Mr Tito and Mr Manuirirangi, are part of this descent group. [89] We have briefly set out the historical background and context to this case because it is relevant to understanding and applying the customary law and legislative provisions applicable to this dispute. [90] This case involves three parties: the appellants are the Bruce family, a Pākehā ­farming couple seeking to purchase the whenua. The first respondents are the Edwards whānau, who currently own the whenua. The second respondents are whānau and hapū who are the Māori customary owners of the whenua, represented by Mr Tito and Mr Manuirirangi. [91] The facts of the case are set out in the judgment of Blanchard J. [92] The Bruce family have come to this Court, appealing the decision of the High Court to adjourn their specific performance application against the Edwardses for the sale and purchase agreement of the whenua. They ask the Court to consider whether the specific performance application should be dealt with now in the High Court, even though following the most recent High Court decision the Māori Land Court has yet to consider the application for the rehearing of the Edward’s change of land status order, or any substantive application to annul the change. The Bruce family say that if the transaction to buy the whenua cannot proceed, they will suffer hardship. [93] Mr Manuirirangi and Mr Tito are kaumātua and members of the hapū who are the Māori customary owners of the whenua. They represent the previous and future g­ enerations of the hapū sustained by the whenua. Mr Manuirirangi and Mr Tito live in South Taranaki and are experts in traditional Māori custom and whakapapa. They know the whenua and its history intimately.

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[94] Mr Manuirirangi and Mr Tito say that the whenua is ancestral land and as such it is inalienable according to Māori customary law. According to Te Ture Whenua Maori Act 1993 (“the Act”), as Māori freehold land the whenua may be sold—but only after f­ ollowing the processes set out in the Act, which include offering the first right of refusal to the pre5 ferred class of alienees (“PCA”). The PCA is the class of people who are descendants of the original owners, whanaunga of the owners or members of the hapū associated with the land in accordance with tikanga. Mr Manuirirangi and Mr Tito are members of the PCA in this matter. [95] Further, Mr Manuirirangi and Mr Tito say that they were not aware of the Edwardses 10 original application to the Māori Land Court to change the status of the whenua from Māori freehold land to general land, and if they had been aware they would have opposed the application, along with other members of the hapū. They say the rehearing should be allowed so as to provide them with an opportunity to appear on behalf of the hapū and explain the reasons for their opposition to the Court. 15 [96] Therefore the issue is whether or not the Bruce family should be awarded specific performance, or whether the Māori Land Court instead should first have the ability to rehear the land status application. Discussion [97] Judge Marumaru heard the Edwardses’ application in the Māori Land Court on 20 8 and 9 March 2000. The Edwardses’ land status change application to the Māori Land Court was submitted under s 135 of the Act. Section 135 confers jurisdiction on the Māori Land Court to make a status order declaring that land shall cease to be Māori customary land or Māori freehold land and shall become general land. [98] This change in status effectively lifts the protections and restrictions given to that 25 land under the Act. Given the Act’s strong policy of retention, the provision in s 136, to change the status of Māori land owned by less than ten people, is deliberately restrictive. Section 136 provides: 30

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136. Power to change status of Maori land owned by not more than 10 persons—The Maori Land Court may make a status order under section 135 of this Act where it is satisfied that— (a) The land is beneficially owned by not more than 10 persons as tenants in ­common; and (b) Neither the land nor any interest is subject to any trust (other than a trust imposed by section 250(4) of this Act); and (c) The title to the land is registered under the Land Transfer Act 1952 or is ­capable of being so registered; and (d) The land can be managed or utilised more effectively as General land; and (e) The owners have had adequate opportunity to consider the proposed change of status and a sufficient proportion of the owners agree to it.

[99] In this case, the criteria set out in paragraphs (a), (b) and (c) were met. Hence, the Māori Land Court had to be certain that the requirements set out in paragraphs (d) and (e) were satisfied before it could make the order. In particular, the Court had to be certain that 45 the change of status would mean the whenua could be managed or utilised more effectively as general land as required by s 136(d). [100] The application to change the land status was advertised in the Māori Land Court Pānui but the Māori Land Court failed to notify the members of the PCA and hapū. This was in contravention of the rule established by the Māori Appellate Court in Re Cleave 50 (1995) 3 NZ ConvC 192,245. In that case, the Court held that it is unjust and inconsistent

with the objectives and core purpose of the Act for a s 135 application to be heard without specific notice to the PCA. It was a reasonable expectation on the part of the PCA in the present case that specific notice would be given under the mechanism in s 67. [101] In Re Cleave, the Māori Appellate Court said at p 8 that “any order sought by the Court, the effect of which could endanger the continued relationship with the land of whānau and hapū associated with it must be treated as being of grave concern”. It considered that where there was “objection to a status change by the preferred class, there must be compelling reasons … before the Court would make an order changing status” (also at p 8). [102] In our view, this was a major issue in the Māori Land Court hearing for land status application, whereby there was no opportunity for the PCA to object to the change of status application, or for the Edwardses to make their “compelling reasons” before the Māori Land Court, because the PCA were not notified and were not aware of the application. [103] A second major issue with the land status change application is the dishonest and misleading behaviour in the Māori Land Court. The Edwards whānau and their solicitor, Mr Bulfin, failed to advise that a sale and purchase agreement for the land had been agreed by the Bruce family and the Edwards whānau, which depended on the outcome of the Court hearing. [104] Under questioning from Judge Marumaru, Mr Bulfin instead advised that the order was sought to enable the Edwardses to deal with their asset in a freer way to assist themselves and their family without the restrictions of it being Māori land. He indicated that leasing and share-milking were possible options. Even when the Edwardses themselves appeared in Court, there was no mention made of the sale and purchase agreement that had already been signed between Mr and Mrs Bruce and the Edwards whānau. [105] The information Mr Bulfin presented to the Māori Land Court was incomplete and false. While the reasons given for the application appeared to be in line with the objective of developing Māori land, the true reasons for the application were in complete contradiction to the Act’s other objective of retaining Māori land. At best, this behaviour is misleading and a breach of Mr Bulfin’s professional obligations as an officer of the Court. At worst, it is a deliberate attempt to undermine judicial processes and the mana of the Māori Land Court. Quite simply, the Court did not have all of the facts before it which it needed to make a valid decision about the status of the whenua. [106] The third major issue in this land status change application is the nature of the sale and purchase agreement. The fact that the Bruce and Edwards families made the land status change a condition of the sale and purchase agreement in the first instance causes suspicion. The legality of this transaction has not been discussed in Blanchard J’s decision. The agreement was signed in February 2000 and conditional on the change of status order in the Māori Land Court only, but not on the statutory right of first refusal for the PCA which still existed under s 147A at that time. From the facts given, it appears that the Edwards whānau never intended to comply with this protection provision, but wished to circumvent it. [107] On 12 May 2000, the change of status order was registered against the title. Section 142 of the Act provides that upon registration a change of status order has the effect of giving the land the particular status specified in the order. Mr Bulfin sent a ­letter to the solicitors for the Bruce family, advising that the sale and purchase agreement for the whenua was by that time unconditional. As noted at [22] of the present case, Mr Bulfin added: “One word of caution however—Change of Status Orders can be overturned and it would be unwise to publicise too widely that the transaction between our respective clients is going through until the transfer to your clients has been registered against

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the title. Once that happens—it is the writer’s view that there is no way that the Māori Land Court could then try and reverse the Change of Status.” 5

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[108] We accept that the Bruce family acquired an equitable interest in the whenua at the time at which the change of status order was registered, although it must be noted that this is an unregistered interest. In the High Court, Ronald Young J held that the Bruce family acquired their equitable interest in the land in good faith. The majority in this Court at para [56] found that because the Bruce family had played no part in the application to the Māori Land Court, they had no reason to suspect that the Court had been misled, or that notice of the hearing had not been served on the PCA. [109] Furthermore at para [38], and most importantly to the Bruces’ success in this case, there is no “factual material which would have been in the hands of the Bruces prior to 23 March that should have caused them concern about the change of status order made on 9 March” (emphasis added). [110] We disagree with the majority in this Court. The Bruce family knew or ought to have known that the sale would be disputed by the hapū, or at the very least they ought to have been concerned about the change of status order. Consequently, they would have known that it was both risky and unfair to proceed with the sale. The Bruces’ solicitors were on notice that there may be an issue with the order prior to registration, evidenced by Mr Bulfin’s letter. The Bruce family should have been advised about this and the potential implications. Interestingly, the Bruces were not questioned about the letter in the High Court. If the letter itself did not cause them concern, the overall context of the secretive transaction with the Edwardses should have. [111] Furthermore, the fact that the South Taranaki area in which Oeo is located is a small-town, rural community made up of a number of well-known families means that the Bruces should have known the importance of Māori freehold land to the Māori community. They would have actually known or should have known of the specific Māori community based at Oeo and their connection with the land. The fact that members of the PCA learned about the transaction through mere rumours is evidence of how small the district is. On this basis, we do not accept that the Bruce family has an untainted equitable interest in the land. [112] If this is wrong and the Bruces were indeed blissfully ignorant of the deception of both the PCA and the Māori Land Court, then it seems it was an unlucky coincidence that both of these entities, deliberately established by the Act to protect and retain Māori ­freehold land in Māori ownership, failed to protect the whenua in this case. This is a ­loophole that this Court cannot allow to be exploited without consequence, and must be remedied in case law if that is consistent with the purpose of the Act. [113] In the meantime, the hapū learned of the impending sale of the whenua. They lodged a caveat against the title and an application was made for a rehearing of the change of status order. The application was out of time. [114] Section 43 allows the Māori Land Court to accept an application for a rehearing that is out of time provided the Judge is satisfied that the application could not reasonably have been made sooner. That was the case here and although Judge Marumaru granted the application for the rehearing he neglected to state his reasons for considering the application out of time. [115] The Edwards whānau brought the present proceeding in the High Court seeking a judicial review quashing the order that there be a rehearing. The trustees for the Bruce family, who had been joined as a party to that application, counter-claimed seeking specific performance against the Edwards whānau. [116] In the High Court, Ronald Young J adjourned the Bruces’ application for specific performance pending the outcome of the rehearing of the land status change order in the

Māori Land Court. That rehearing has been postponed pending the determination of the present appeal. The issue [117] The issue for this Court is to determine whether the decision of the High Court to adjourn Mr and Mrs Bruce’s application for specific performance of the sale and purchase agreement was correct. The question we are being asked to answer is narrow. The legal framework—the Te Ture Whenua Maori Act 1993 [118] The focus of this case is Oeo B2 Block which has been occupied by the whānau and hapū of Taranaki according to customary law or tikanga Māori since time immemorial. Under the Act the entire Oeo Block, which includes Oeo B2 Block, became Māori freehold land when granted to Hone Pihama in the 1880s. [119] In any case regarding Māori land we turn first to the legal framework established by the Te Ture Whenua Maori Act 1993. The Act comprises a complete set of rules designed to apply to all Māori land (Māori customary land and Māori freehold land). While we are dealing with legislation, the legislative framework in the Act gives recognition to the principles of tikanga Māori, or Māori customary law. In turn, tikanga Māori is critical to understanding what the Act is designed to achieve. Further, it is known that Article 2 of the Treaty of Waitangi guarantees protection of the customs and practices of Māori in relation to their land, and the Act was enacted to give effect to that protection. Under the Act the Māori Land Court has exclusive jurisdiction to determine matters relating to Māori land. The Māori Land Court judges have specialist and practical knowledge about the particular challenges facing owners of Māori land. As a specialist court, the Māori Land Court is best placed to determine disputes about Māori land. [120] It is necessary to set out the purpose and principles of the Act in some detail, as a purposive approach to statutory interpretation is important in the context of Māori land. At the third reading of the Act in Parliament in March 1993, Minister Kidd told the House:

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Retention of Māori land in Māori ownership is at the heart of this Bill … Te Ture Whenua Maori is the first major legislation framed according to what Māori have 30 said they need. It has as its foundation the Treaty of Waitangi, and reflects the Māori ­philosophy that land is a treasure, a taonga tuku iho, to be preserved and passed on to future generations and that it should remain within whānau, hapū, and iwi structures (NZPD, 1993, vol 533, p13656). [121] The statements of the Minister are reflected in the Preamble to the Act. 35 The ­Preamble is central to interpreting and applying the Act’s provisions. The Preamble to the Act states: Nā te mea i riro nā te Tiriti o Waitangi i motuhake ai te noho a te iwi me te Karauna: ā, nā te mea e tika ana kia whakaūtia anō te wairua o te wā i riro atu ai te kāwanatanga kia 40 riro mai ai te mau tonu o te rangatiratanga e takoto nei i roto i te Tiriti o Waitangi: ā, nā te mea e tika ana kia mārama ko te whenua he taonga tuku iho e tino whakaaro nuitia ana e te iwi Māori, ā, nā tērā he whakahau kia mau tonu taua whenua ki te iwi nōna, ki ō rātou whānau, hapū hoki, a, a ki te whakangungu i ngā wāhi tapu hei whakamāmā i te nohotanga, i te whakahaeretanga, i te whakamahitanga o taua whenua hei painga 45 mō te hunga nōna, mō ō rātou whānau, hapū hoki: ā, nā te mea e tika ana kia tū tonu he Te Kooti, ā, kia whakatakototia he tikanga hei āwhina i te iwi Māori kia taea ai ēnei kaupapa te whakatinana. Whereas the Treaty of Waitangi established the special relationship between the Maori people and the Crown: And whereas it is desirable that the spirit of the exchange of

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kawanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi be reaffirmed: And whereas it is desirable to recognise that land is a taonga tuku iho of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of its owners, their whanau, and their hapu, and to protect wahi tapu: and to facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu: And whereas it is desirable to maintain a court and to establish mechanisms to assist the Maori people to achieve the implementation of these principles. [122] Section 17(1) outlines the ‘General objectives’ of the Act: first, the retention of Māori land in Māori ownership, and secondly, the facilitation of the effective use, management and development of Māori land by Māori owners. These may be referred to as the dual objectives of the Act. [123] Finally, s 2(1) ‘Interpretation of Act generally’ prescribes that the Act be ‘interpreted in a manner that best furthers the principles set out in the Preamble’, and s 2(2) prescribes that the Act be applied consistently with the dual objectives of retention and development of Māori land for the benefit of the owners. Significantly, s 2(2) promotes Māori land as ‘taonga tuku iho by Maori owners, their whanau, their hapu, and their descendants’. [124] In the present case we are chiefly concerned with the first objective: retention of Māori land in Māori ownership. It will therefore become important to interpret the Act in the present case in a way that gives effect to the purpose of retaining the whenua in Māori ownership. [125] The objective of retention exists to protect Māori land, whether it is customary or freehold land, for its owners. Implicit in the notion of retention of Māori land is restrictions on its alienation. This policy goal is evident in the guiding provisions ss 2 and 17 and the Preamble, and supported in other important provisions that give the Māori Land Court its discretions to perform its role. [126] The new restrictions on alienation of Māori land that were introduced in the Act were included as a result of Māori lobbying on the Bill, which focused on the need to retain what was left of Māori land in Aotearoa and to ensure that the land remained in Māori ownership for the benefit of future generations. This approach was based in tikanga Māori, recognising that land is not a commodity existing to be bought or sold by individuals, but that it is te waiū, a taonga tuku iho to be nurtured and sustained, in order that it may ­continue to nurture and sustain our children and their children. [127] As a result, the thresholds under the Act for effecting a sale, gift or transfer of Māori freehold land are deliberately difficult to meet. For example, under s 150 Māori land may only be alienated by a vesting order in the Māori Land Court. Under s 150C(1)(a), 75% of owners must approve a sale or gift of Māori land when a number of individuals hold undivided interests in that block. Most importantly, in cases where all owners of an entire block intend to sell, as is the case here as Mr Edwards is the sole owner of Oeo B2 Block, they must first offer that land to the preferred class of alienees (PCA). The PCA is that class of people who are descendants of the original owners, whanaunga of the owners or members of the hapū associated with the land in accordance with tikanga. Section 147A therefore allows owners to sell their Māori land while retaining that land in the Māori land corpus. [128] Having set out the purpose and principles which underpin the Act, we turn now to examine the specific statutory provisions relevant to this dispute, which must be interpreted and applied consistently with the dual objectives of the Act and, in particular, with the purpose of retaining the land in Māori ownership.

Specific statutory provisions 50 [129] The case in the High Court turned on statutory interpretation of s 88(1). Section 88 places a qualification or restriction upon the operation of an order made under the a­ uthority

of s 43 relating to the granting of a rehearing. It operates as a “saving” provision to protect rights and interests notwithstanding an amendment or cancellation of an order to do with that right or interest. Section 88 states: 88. Amendment or cancellation of orders not to affect acquired rights— (1) Where, whether pursuant to any provision of section 86 or section 87 of this Act or otherwise, any order, warrant, record, or other document is amended or cancelled, the amendment or cancellation shall not take away or affect any right or interest acquired in good faith and for value before the making of the amendment or cancellation.

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(2) If any order or other document so amended or cancelled has previously been reg- 10 istered by a District Land Registrar, the order of amendment or cancellation shall be transmitted to that Registrar, who shall make all necessary consequential amendments in the registration of the title to any land affected by the amendment or cancellation. [130] In the High Court, the issue was whether s 88(1) would apply to protect the Bruces’ equitable interest in the land, in the event that the Māori Land Court decided to reverse the land status change order. Young J found that it did not. He came to this conclusion upon a consistent approach to statutory interpretation, whereby he contrasted the differences in language between ss 88(1) and s 43(5) relating to orders annulled or varied on a rehearing. Whereas s 88(1) is concerned with orders that are amended or cancelled, s 43(5) is concerned with orders that are varied or annulled. Ronald Young J concluded that s 88(1) would not apply to protect the Bruces’ interest, thus any reversal or annulment of the land status change in the Māori Land Court would effectively destroy the Bruces’ equitable interest in the land. He then adjourned the Bruces’ action for specific performance in the High Court pending the outcome of the rehearing of the land status change order in the Māori Land Court. [131] In the present case the majority reversed Young J’s conclusion on s 88(1). Blanchard J determined that upon an historical approach to statutory interpretation, the differences in language between ss 88(1) and s 43(5) were purely cosmetic and thus s 88(1) could apply to the Bruces’ interest. The majority considered that as s 88(1) does protect the Bruces’ interest, any reversal in the Māori Land Court would be contrary to this protection, and therefore improper. [132] In our view, the selective use of the textual consistency or historical approaches to statutory interpretation of s 88(1) was inadequate in this case in the absence of the consideration of statutory purpose. In issues relating to Māori land it is imperative that Judges undertake a purposive approach to statutory interpretation, in order to give effect to the purpose of the Act and its dual objectives. In this case, as discussed below, we are specifically concerned with the objective of retaining Māori land in the hands of its owners.

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Practical considerations [133] We note that in the previous approaches to this case, the outcomes depend upon a 40 purely adversarial perspective of the case, and the belief that the interests of the Bruces and the Edwardses, and the PCA, are mutually exclusive. In our view they are not, and the decision of the Court should, as much as possible, best further the interests of all parties. [134] As well as the legal and factual considerations, there are important practical con- 45 sequences to consider in this case. The law requires that a judge interprets and applies the law to the best of her ability, taking into account the particular facts of the case. This simplistic approach does not always allow for the consideration of the impact of decisions on families and communities. In some cases, the interpretation of the law leads to unintended and adverse results, which may not promote the ideals that every community must strive 50 to achieve—justice and equity for all and in the long-term an outcome that will enhance

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rather than undermine the health and wellbeing of communities. Judges must strive to interpret and apply the law in ways which will benefit our communities. [135] The factors which must be assessed in this case are as follows. Mr and Mrs Bruce are farmers who have expended costs to ensure they can farm the whenua. Since the date of the sale and purchase agreement, land values in Taranaki have increased and it is possible the Bruce family may not be able to purchase a substitute farm. They would have been likely to suffer financial hardship if the majority decision of this Court was not favourable to them. This financial hardship and potential restriction on their ability to farm elsewhere in Taranaki or New Zealand may have, depending on their personal and financial circumstances and extent of family or other support, caused the Bruce family stress. [136] Mr Tito and Mr Manuirirangi, who are responding on behalf of the PCA, the whānau and hapū who are the original owners of the land, are likely to suffer significant spiritual and cultural prejudice if the land status change order survives and the sale to Mr and Mrs Bruce proceeds. Contrary to Blanchard J’s assertion at para [73], this is not because the whenua will cease to belong to its customary Māori owners, but, as the status of the land will change from Māori freehold land to general land, the legal protections that apply to the whenua under the Te Ture Whenua Maori Act and the jurisdiction of the Māori Land Court will be removed. Even though the whenua will forever remain taonga tuku iho to the whānau and hapū under tikanga Māori, these descendants will cease to have any legal relationship with the whenua, or any legal recourse for ownership in the future. From a practical perspective we accept, for the reasons given by Blanchard J, that the PCA cannot afford to purchase the whenua. In our view, this is not fatal to their application for a rehearing of the land status change in the Māori Land Court. [137] The spiritual and cultural prejudice that may result from a decision which favours the Edwards and Bruce families only is likely to compound damage done to generations of Māori with respect to whenua. From an economic perspective, a parcel of land 132.7484 ha in area and worth $2.2m has just left the Māori land corpus. Considering only 5.6% of New Zealand land has the status of Māori freehold land, this loss is not insignificant. This loss has been facilitated by the majority of the Court in the present case; it cannot be seen as separate from the story of Aotearoa’s colonisation and dispossession of Māori land, but a mere continuation of this trend. The decision in this Court is likely to contribute to feelings of anger and resentment about loss of land in Taranaki and Aotearoa generally. [138] Context is everything and is important in any decision, even when the issue in question is narrow as is the case here. This dispute has arisen in rural South Taranaki, where the families involved are long-standing members of the community. All of the people involved in this case live in South Taranaki and are part of the community. They will continue to live on the whenua in the Taranaki rohe in the immediate future and they will interact with each other on a regular basis. It is, in our view, important to find an outcome of the case that respects the mana of all parties and maintains equilibrium in all interests. [139] Consistent with the whakatauākī of Te Whiti o Rongomai quoted at the beginning of this judgment, we must consider the impact of our decision on future generations as well as the impact of the decision on the parties involved in this case.

Purposive approach to statutory interpretation [140] The applicable law in this case is Māori customary law and the statutory and com45 mon law framework, specifically the Te Ture Whenua Maori Act 1993. It is necessary to adopt a purposive approach to statutory interpretation in this case to best give effect to what the Act was designed to achieve. [141] The starting point is Māori customary law or tikanga Māori which establishes the collective rights and responsibilities of the hapū with respect to the whenua in dispute. 50 That law is relevant to interpreting and applying the statutory law that has been developed

to provide modern-day protections for Māori owners of land. This tikanga is reflected in the Act, and must be considered when applying the rules and principles of the Act. [142] The Act provides very clear rules about the two separate but interrelated transactions in this case: the alienation of Māori land, and applications for changing the status of Māori freehold land to general land. In terms of the Act’s dual objectives, the protections in regards to the alienation of Māori land have high thresholds to facilitate retention of Māori land; and land status change applications are generally approved in order to facilitate the development of Māori land. [143] The first question for appeal is whether under s 88(1) the Bruces’ unregistered equitable interest in Oeo B2 Block would be protected against an order in the Māori Land Court that the land status application be reversed. [144] We agree with Blanchard J for the reasons stated in the majority judgment that s 88(1) does apply to protect the Bruces’ equitable interests. In the event therefore that the Māori Land Court reversed the change of status order at a rehearing, the Bruces would retain their equitable interest in the whenua; that is, an interest in purchasing the whenua from the Edwards whānau. [145] However, it is important to ascertain the nature of the Bruces’ equitable interest. In our view, and consistent with the purpose of the Act, s 88(1) can only protect the Bruces’ interest in purchasing the whenua itself. Section 88(1) does not protect an interest in purchasing the whenua with the status of general land. This conclusion best gives effect to the Act’s objective of retention of Māori land. [146] The fact that the whenua had the status of Māori freehold land at the time of the sale and purchase agreement was not a barrier per se for the Bruces, being non-Māori, in purchasing the land. This would have been possible under the Act if the Edwardses had effectively discharged their obligation to the PCA under s 147(2). Keeping the status of the whenua as Māori freehold land and owned by non-Māori would be more consistent with the dual objectives of the Act, and specifically with the objective of retention, than the whenua becoming general land. This is because as Māori freehold land, legal protections such as the right of first refusal would remain in existence to potentially bring the whenua back into Māori hands in the event that the Bruces wish to sell again in the future. [147] Therefore, the Bruces’ interest in the land must be distinguished from an interest in the status of that land. Upon this conclusion, and in the event that the change of status is reversed, the registration of such an order would not be inconsistent with the Bruces’ protected equitable interest under s 88(1). [148] Following the Māori Land Court rehearing, it would remain open to the Bruce ­family to waive the general land condition in the sale and purchase agreement and purchase the land as Māori freehold land.

5

10

15

20

25

30

35

Specific performance [149] The second question for appeal is whether the Bruces should be awarded specific 40 performance in this Court. [150] Specific performance is an equitable remedy. The court of equity developed the remedy as damages often could not adequately compensate a person for the inability to own a particular piece of real property, land being regarded as unique, as in the present case. Specific performance is often guaranteed through the remedy of a right to possession, 45 giving the plaintiff the right to take possession of the property in dispute. Such orders are discretionary, so the availability of this remedy depends on whether it is appropriate in the circumstances of the case. [151] To date, and following the High Court decision, the Māori Land Court has not had the opportunity to consider whether there should be a rehearing of the Edwardses’ change 50 of land status application. If specific performance is awarded in this Court, the Māori Land

Mana Wahine

Bruce v Edwards—Judgment 345

346  Kerensa Johnston and Mariah Hori Te Pa

Mana Wahine

5

10

15

20

Court will be barred from rehearing the application altogether. This would be manifestly unjust as the Māori Land Court was deprived of the ability in the first instance to a­ dequately consider the change of land status application. [152] In our view therefore, this appeal is premature. The Māori Land Court should have the opportunity to rehear the land status change application with all of the facts before it. [153] Following the rehearing in the Māori Land Court it remains open for the High Court to order specific performance of the contract, notwithstanding a reversal of the land status order, by waiving the general land condition in the contract. This is consistent with the purpose of specific performance in giving the Bruces the right to take possession of the whenua, but not the right to the land status of the whenua. [154] This is the most desirable outcome and restores the mana of all parties and ­balance between their interests: the Edwardses would be allowed to sell the whenua; the Bruce ­family allowed to farm the whenua; and the whenua allowed to retain the status of Māori freehold land, with all of the statutory protections that entails. This outcome recognises the Bruces’ equitable interest in the land as well as the competing interests of the PCA under the Act and according to tikanga Māori. [155] Most importantly, this is the outcome most consistent with the Te Ture Whenua Maori Act. This is because, despite the whenua coming into the hands of non-Māori owners, a purposive approach to interpreting s 88(1) preserves the right of first refusal for the PCA for this and future generations sustained by the whenua.

Our decision [156] In our view, therefore, the Bruce family is not entitled to an order for specific ­performance of their contract with the Edwardses. This appeal is premature in circum25 stances in which the Māori Land Court has yet to hear the application relating to the land status change. We would adjourn the Bruces’ action for specific performance to be brought on for hearing in the High Court upon resolution of the Māori Land Court litigation. [157] Once the Māori Land Court has determined the question of land status, the High Court will be in a better position to exercise its discretion in awarding the Bruces specific 30 performance of their contract with the Edwardses, regardless of whether or not Oeo B2 Block retains the status of Māori freehold land. [158] We would dismiss the appeal. Appeal allowed.

Commentary on Waipapakura v Hempton Whitebait for the People JOHN DAWSON

Fishing in Tidal Waters Waipapakura v Hempton was an unsuccessful civil action brought against a fisheries officer by a Te Āti Awa woman in the months preceding the First World War.1 We know few details about the plaintiff. Her name was Waipapakura. She was from the Ngāti ­Hineuru hapū (customary descent group). The fisheries officer had seized her nets, because he thought she was fishing unlawfully for whitebait in the estuary of the Waitara River in northern Taranaki. Instead of waiting to be prosecuted, Waipapakura then took preemptive­action, directly asserting her rights, suing the fisheries officer in the tort of conversion for damages and return of her nets. The case is important because it required the court to rule on the existence of the relevant Māori fishing rights. It is also important because it ‘crystallised’—as the New Zealand Law Commission put it—certain legal principles,2 developed in the New Zealand courts of the mid to late nineteenth century, that show a blindness towards any distinct conception of Māori legal rights. The courts of that era might have conceded that Parliament could confer rights on Māori by enacting legislation that was sufficiently clear to modify the common law. They might have conceded, for instance, that Parliament had, by passing the Native Lands Acts 1862 (NZ), conferred on Māori the right to have their customary land title investigated by the Native Land Court, a right unknown to the common law. But, said the courts, only clear legislation of that kind could render such distinct Māori rights ‘­cognisable’ in a New Zealand court. The common law, ‘brought with us’ from England on the day the colony became part of the British Empire,3 provided no foundation for such rights. Nor could Māori rights be based directly on the Treaty of Waitangi, because ‘until there is some legislative proviso as to the carrying-out of the treaty, the Court is helpless to give effect to its provisions’.4 1 

Waipapakura v Hempton (1914) 33 NZLR 1065 (SC). Zealand Law Commission, The Treaty of Waitangi and Maori Fisheries (Wellington, NZLC PP9, 1989) 127. 3  Waipapakura (n 1) 1071. 4 ibid. 2 New

Mana Wahine

19

348  John Dawson

Mana Wahine

Chief Justice Stout firmly reasserted these colonial legal principles, deciding the ­ aipapakura case for a full bench of the Supreme Court, in Wellington, in 1914.5 Some of W these principles remain part of our law. On one level, the case was therefore about fishing rights, even particular fishing ­methods. Waipapakura had been using three nets, plus groynes sticking out from the shore to channel into her nets the whitebait as they migrated upstream, when the general fishing regulations permitted only one net and prohibited use of groynes.6 On another level, the case was about the sources of New Zealand law: which sources would the courts recognise, and was there any room within those sources for a distinct conception of Māori rights? In addition, the case was about rights to land. The nets with which Waipapakura was fishing were fixed to poles driven into the ground of the foreshore (or inter-tidal zone) of the river estuary. So, a further question was: must Waipapakura be the owner or occupier of that foreshore land, to fish there lawfully? Her counsel, David Hutchen, of New Plymouth, said she did not need to be the land’s owner, because the court could recognise a separate, non-territorial fishing right. It could recognise a use or harvesting right that could be severed legally from ownership of the land. Thus, so long as Waipapakura had lawful access to the land—as she did—she could fish there, in a customary way, whether or not she owned the land (as Williamson J would eventually decide about the right to take paua, in Te Weehi, in 1986).7 This question had special significance because s 77(2) of the Fisheries Act 1908 (NZ) provided: ‘Nothing in this … Act shall affect any existing Maori fishing rights’. That section did not seem to confer any particular land rights on Waipapakura. But if she had a fishing right that could be severed from land rights, that section might exempt her fishing from regulation by the general fisheries regime. The fisheries officer would then have no power to seize her nets for breaching that regime, and her suit against him for conversion might succeed. If, on the other hand, the fishing rights ran with the land, further questions would need to be answered as to who owned this foreshore land (the very question that would arise again in Ninety Mile Beach8 and Ngati Apa).9 Was the Crown its owner? If so, on what basis? What of the competing rights of Waipapakura and her whānau (extended family group)? Could they not be the owners? They had managed to secure, through the Native Land Court, a grant of Māori freehold title to the lands adjoining the estuary that lay above the high tide mark.10 That grant seemed to indicate that they were the ancestral owners of these lands. So why should they not also own the foreshore land below the high tide mark? It was there that Waipapakura had been fishing, as her forebears had presumably done previously, with nets fixed to poles dug into the land. Finally, the case might even be described as about the survival of Waipapakura’s whānau, given the impact on Māori of the land wars and confiscations that had occurred in Taranaki since the 1860s,11 and the drastic decline that had occurred in the Māori population 5 

The other members of the bench were Cooper and Edwards JJ. They did not deliver separate judgments. Fisheries Regulations 1911 (NZ), cl 3. 7  Te Weehi v Regional Fisheries Officer [1986] NZHC 149, [1986] 1 NZLR 680. 8  In re the Ninety Mile Beach [1963] NZLR 461 (CA). 9  Ngati Apa v Attorney-General [2003] NZCA 117, [2003] 3 NZLR 643. 10  Waipapakura (n 1) 1067, 1072. 11  See Waitangi Tribunal, The Taranaki Report: Kaupapa Tuatahi (Wai 143) (Wellington, Government Printer, 1996). 6 

throughout New Zealand in the nineteenth century, to the point where it was openly questioned whether the ‘Māori race’ would survive. The number of Māori had hit rock bottom, it seems, at about 40,000 people, in 1896.12

Stout CJ and the Decision in Waipapakura Stout CJ, who delivered the leading judgment, had, during his earlier political career, been considered by his peers to have radical views on ‘the land question’.13 He had opposed in Parliament the more ruthless aspects of the government’s confiscation policies in Taranaki in the 1870s, and had backed legislative measures designed to promote greater equality for women.14 His wife, Anna Stout, was a leading advocate of women’s suffrage, both in New Zealand and in England. He was widely considered by his contemporaries in the legal profession to be a humane and liberal judge. He was a great educationist: originally a teacher in Dunedin, on arrival from the Shetlands, aged 19; the first student enrolled, and first law lecturer, at the University of Otago; a founder of Victoria College (hence the Stout Centre that still exists at that institution); and Chancellor of the University of New Zealand. He was also a life-long teetotaller and prohibitionist.15 A few years before he decided the case, Stout CJ had delivered to the Governor, in 1907, the report of the Stout-Ngata Commission,16 an inquiry into the law governing administration of Māori land. In this report, Stout and Ngata wrote:17 The Maori race is in a most difficult and critical position. There is great pressure from European settlers to obtain possession of their lands … The position of the Maori people deserves our most careful and immediate consideration … The race in many parts of the country has declined … Is the race to pass away entirely? They are a people able physically and intellectually … The race is worth saving, and the burden and duty of preserving the race rests with the people of New Zealand. [I]ndicators all point to the conclusion that for good or ill the next few years will decide the future of the race … The spectacle is presented to us of people starving in the midst of plenty.

Yet, in the Supreme Court in Wellington, seven years later, Stout as Chief Justice swiftly dismissed Waipapakura’s action for £10 damages and return of her nets. First, he held, no non-territorial fishing right could be recognised that was severable from ownership of the land. Second, it was the Crown that owned the land, as it had done since it came to the colony. Third, the title that Waipapakura and her whānau had obtained through the Native Land Court to the adjoining land ended at the high tide mark, as did all titles to land that bordered the sea in England. So Waipapakura and her people did not own the land that lay below the high tide mark. Thus, they could not claim any fishing right that ran with ownership of the land.

12 

I Pool, The Maori Population of New Zealand: 1769–1971 (Auckland, Auckland University Press, 1977). W Dunn and I Richardson, Sir Robert Stout: A biography (Wellington, AH & AW Reed, 1961). ibid 152–153. 15 ibid. 16  Report of the Commission to Inquire into the Question of Native Lands and Native Land Tenure (Wellington, Government Printer, 1907). 17  ibid 14–15. 13  14 

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Waipapakura v Hempton—Commentary 349

350  John Dawson

Mana Wahine

Furthermore, the general fisheries regulations applied to Waipapakura’s fishing practices, as they applied to all other New Zealanders. The Fisheries Act might say ‘Nothing in this … Act shall affect any existing Maori fishing rights’. But that was only a ‘savings’ clause. It did not create any new rights. It merely saved rights already expressly created by some other statute. But here there was no other statute. So, no distinct ‘Māori fishing rights’ had been created that could be ‘saved’ and left ‘unaffected’ by the general regulatory scheme. The fisheries officer could therefore lawfully seize Waipapakura’s nets when she breached that scheme. Her civil action against the fisheries officer was dismissed.

The Colonial Legal Gaze How can it be explained that, in these tough times in Taranaki, of which he was well aware, such a man as Stout CJ could—without apparent hesitation—strike out Waipapakura’s claim? The answer must lie in the assumptions from which Stout CJ and his legal contemporaries were working, especially when these assumptions gave essential support to the thing the settlers valued most: security of title to land. First, the doctrines Stout expounded in Waipapakura reflected the settlers’ strong belief that, if colonisation was to benefit both the settlers and their government, the state must control the acquisition and distribution of land and other valuable resources. As Martin CJ put it in R v Symonds, in 1847: ‘colonization is a work of national concernment’.18 So it must take place under firm state control. The Liberal government’s land policies of the 1890s illustrate this thinking.19 The Liberals had resumed the practice of Crown pre-emption, and then embarked on extensive purchasing of Māori lands in the North Island. Their aim was to ‘open up’ those lands to closer settlement by ‘industrious’ small farmers, working modest but economic units, who would prosper on the back of technological advances in the meat and dairy industries. This could be done while avoiding the formation of large estates owned by gentry with impoverished tenant farmers, the system of tenure that blighted the social order in Great Britain (especially Scotland). In addition, the European settlers and judiciary shared a further assumption: that the establishment of Crown sovereignty automatically imported English common law. As Stout CJ put it in Waipapakura: ‘The law of fishery is the same in New Zealand as in ­England, for we brought the common law of England with us, except in so far as it has … been altered by our statutes’.20 The English Laws Act 1858, enacted by the New Zealand ­Parliament, confirmed the same premise (that had been followed in the courts since the 1840s), that: ‘The laws of England as existing on … [14 January 1840] shall, so far as applicable to the circumstances of the … Colony of New Zealand, be deemed and taken to have been in force … on and after that day …’.21 Furthermore, by the early 1900s, the New Zealand courts had clearly decided that the pre-existence of the Māori people living 18 

R v Symonds (1847) NZPCC 387 (SC) 395. T Brooking, Lands for the People? The Highland Clearances and the Colonisation of New Zealand: A Biography of John McKenzie (Dunedin, University of Otago Press, 1996). 20  Waipapakura (n 1) 1071. 21  English Laws Act 1858 (NZ), s 1. 19 

on the land was not one of those ‘circumstances of the Colony’ that would (without statutory imprint) modify the imported principles of English law. The importation of the common law brought with it the fundamentals of English land law. This established in New Zealand the basic notions that: the Crown was the sole source of private title to land; any such private title, to be recognised in the general courts, must be evidenced by a Crown grant; and, if no other party could produce such a grant, ownership of the land remained with the Crown. Only statutes—the courts said—such as the Native Lands Acts, could modify these received principles of English land law. Under those English land law principles, title to lands adjoining the sea usually ended at the high tide mark. Any exception to that rule would therefore have to be based on a positive grant of title by the Crown (or on some statutory rule) that clearly conferred ownership below the high tide mark on some other party. If no such exception existed, the Crown would remain the owner of the foreshore land, even if it had conferred on someone else a title to the lands above the high tide mark. As Salmond KC, the Solicitor-General,22 put it in his argument in Waipapakura (that Stout endorsed): the foreshore land ‘belonged to the Crown since the Crown came to New Zealand’.23 Nor were prior Māori fishing practices a reason to change English fishing law. Thus, the headnote to Waipapakura in the 1914 law reports reads: ‘The right of Maoris to fish in the sea is the same as the right of ­Europeans …. Maoris as such have no communal or individual rights of fishery, territorial or extra-territorial­, in such waters’.24 The fact that Waipapakura’s poles (or some form thereof) had been stuck in the ground since time immemorial, and that the Treaty of Waitangi guaranteed ‘full exclusive and undisturbed possession of … their fisheries’, made no difference. These themes, then, lie behind the colonial legal principles Stout CJ expounded in ­Waipapakura. It is no coincidence that these principles permitted the Crown to respond to the main demand made by the settlers on their government: that it guarantee the security of their title to land. For that guarantee to be rock solid, the colonial legal system had to oust completely the idea that the ancestral Māori owners could impeach a settler’s title, granted by the Crown, on the ground that the Māori title had not been properly expunged. The short way to achieve that aim was simply for courts to say: no Māori customary title (or any other customary rights) could be recognised at all. The only exceptions would be those permitted by legislation, and thus it would be Parliament, controlled at all times by the settlers, that would determine ‘Native policy’ and settle ‘the land question’. Thus, the need to guarantee the security of the settlers’ title; the desire to establish the paramount ownership of the Crown; reverence for English law; the inability of a treaty to alter the law—all pointed to the colonial courts’ conclusion that Māori rights ‘as such’ fell outside the judicial gaze. The New Zealand judges of the 1910s were quite open on these points. Leading the famous Protest of Bench and Bar, in 1903, Stout CJ said:25 All lands of the Colony belonged to the Crown, and it was for the Crown … to grant to the parties to the Treaty such lands as the Crown had agreed to grant. The root of title being in the Crown, the Court could not recognise native title. This has been ever held to be the law in New Zealand. 22 

A Frame, Salmond: Southern Jurist (Wellington, Victoria University Press, 1995). Waipapakura (n 1) 1068. 24  Waipapakura (n 1) 1065. 25  Wallis v Solicitor-General—Appendix. Protest of the Bench and Bar [1903] NZPC 2, (1903) NZPCC 703, 732. 23 

Mana Wahine

Waipapakura v Hempton—Commentary 351

352  John Dawson Williams J declared, on the same occasion:26

Mana Wahine

What the rights of any prior Native occupiers might be, or whether they had any rights, was a matter for the conscience of the Crown. In any case, they had no rights cognizable in this Court. Nor could the Court examine in any way what their rights were.

Edwards J, who later sat with Stout CJ on Waipapakura, added that, if any other approach were followed, ‘the titles to real estates in this Colony would be thrown into irretrievable doubt and confusion’.27 As is well known, these land law policies had disastrous consequences for Māori ­society. They subverted Māori relations with the land, fragmenting a social order in which, as Sir Edward Durie puts it, ‘Land and ancestors were fused’.28 They deprived Māori of an ­economic base, stripping them of communal property and access to mahinga kai (customary food-gathering places and practices). It forced Māori from traditional occupations into poorly-paid work, and compelled them into the cities, beyond the supportive structures of whānau and iwi (extended kinship group), and into places where new distinctions existed between public and private worlds. Māori women lost their share in communal property. They were deprived of the strength of whānau, of access to traditional resources, and of social roles performed within a network of kinship relations. The common consequences were poverty and poor health for Māori women and their children, isolation, vulnerability, and exploitation in work. Land loss led, in Mikaere’s words, to ‘disruption of Maori social organisation’, forcing women into the ‘Pakeha model of the nuclear family’, leaving them and their children ‘vulnerable in a host of ways’.29

The Mana Wahine Judgment For Gattey J, or any other woman, to have heard this case would have required her to be the first woman judge appointed to the bench in any common law jurisdiction. Recall, ­however, that all New Zealand women got the vote in 1893.30 Subsequently, women had been permitted to enter the medical and legal professions.31 So Gattey J could conceivably have had the opportunity, since completing her law degree, to acquire the necessary years of legal practice to qualify for appointment to the bench. For Gattey J to provide a solution that differs from the decision provided by her ­frock-coated brother judges, she must escape the premises of colonial law. In order to do this, she relies first on certain competing lines of judicial authority, developed in the

26 

ibid 755. ibid 757. 28  E Durie, ‘Will the Settlers Settle? Cultural Conciliation and Law’ (1996) 8 Otago Law Review 449, 452. 29  A Mikaere, ‘Maori Women: Caught in the Contradictions of a Colonised Reality’ (1994) 2 Waikato Law Review: Taumauri 125; B Brookes, A History of New Zealand Women (Wellington, Bridget Williams Books, 2016) 135–142. 30  Electoral Act 1893 (NZ). 31  Female Law Practitioners Act 1896 (NZ). 27 

New Zealand courts in the early years of the colony, and expounded in the Privy ­Council, to support the alternative view—now generally accepted—that Māori customary rights could be recognised in the courts, as an aspect of the common law, unless lawfully superseded. Second, she finds that the reference to ‘existing Maori rights’, saved by the Fisheries Act, could constitute a reference to rights under the Treaty of Waitangi, when Article 2 of that Treaty expressly protects Māori ‘fisheries’. Next, she rejects the notion that English land law and fishing law were received unmodified into the colony. Instead, she finds the pre-existence of Māori customary rights to both land and fisheries to be one of the ‘circumstances of the Colony’, referred to in the English Laws Act, that required the modification of English law in the colonial setting (a principle that would be endorsed by the Court of Appeal, in Ngati Apa, in 2003).32 The result is that Waipapakura’s whānau should be viewed as the owners of the foreshore land upon which the fishing was taking place. So Waipapakura was fishing there ­lawfully. She was also fishing in a customary way; her fishing rights were therefore ‘saved’ by s 77(2) of the Fisheries Act. The fisheries officer was wrong to seize her nets; and she was entitled to succeed against him in the tort of conversion and obtain damages and return of her nets. Gattey J’s judgment is informed by an ethic of care.33 It emphasises the fact that the case concerns the capacity of a Māori woman to feed her whānau, in the wake of war and large-scale land confiscations, with all the impact that must have had on her people. Gattey J stresses that the case is about Waipapakura’s ability to keep her obligations to her family, friends and guests—about whanaungatanga and manaakitanga—by ­serving them inanga (whitebait). It concerns the maintenance of kinship relations and the role of mahinga kai in preventing the extinguishment of a culture and a people. For how, without collecting sufficient food, that might require the use of three nets, not one, could Waipapakura sustain her obligations and her connections to her people, the land, the sea, her ancestors, ­Tangaroa (the gods), and the cosmos? If Gattey J’s approach had appealed to her brother judges, ­Waipapakura’s right to meet her social obligations to her people would have prevailed.

32 

Ngati Apa v Attorney-General (n 9). C Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, Mass, Harvard University Press, 1982); V Held, Feminist Morality: Transforming Culture, Society, and Politics (Chicago, University of Chicago Press, 1993). 33 

Mana Wahine

Waipapakura v Hempton—Commentary 353

Mana Wahine

WAIPAPAKURA v. HEMPTON.

GATTEY, J.:— On 22 August 1913, Waipapakura was fishing for whitebait in the tidal waters of the Waitara River, using multiple set-nets and groynes. Her set-nets were fixed to poles staked in the riverbed adjacent to her hapu’s ancestral lands, to which her hapu (Ngati Hineuru) has a grant of title from the Native Land Court. While she was fishing in this customary way for such highly prized seafood, Hempton, a fishery officer, seized her nets on the purported basis that her traditional fishing breached regulations made under the Fisheries Act, 1908. Hempton acted this way despite the savings provision in subsection 2 of section 77 of the Fisheries Act, 1908, which stipulates “Nothing in this Part of this Act shall affect any existing Maori fishingrights”. Hempton has since refused to return Waipapakura’s nets. Without awaiting prosecution, and seeking return of her confiscated nets, Waipapakura sued Hempton for their wrongful conversion. In the Magistrates’ Court at New Plymouth, Alfred Crooke, Esq., S.M., nonsuited Waipapakura on the basis that he lacked jurisdiction to inquire into the existence of Maori fishing-rights, which could only be ascertained by the Native Land Court. This appeal against the Magistrate’s decision, however, goes far beyond mere jurisdictional issues. It raises fundamental questions of constitutional and customary law, requiring examination of the reception of English common law in New Zealand in relation to the Crown’s assumed ownership of land under tidal waters. It concerns the survival of customary fishing-rights of Waipapakura, and its outcome will have significant impact on her people. The questions raised by this appeal also implicate the Maori concepts of mana (or prestige, or power) and the obligations of hospitality. This decision even affects the very survival of ­Waipapakura’s people, with obvious implications for their ability to sustain themselves in traditional ways. I have had the benefit of reading in draft the judgment of Stout, C.J. for the majority, and although our opinions align on the issue of jurisdiction, our interpretations of the law diverge over what constitutes an “existing Maori fishing right”. While the majority sees fit to dismiss this appeal, I would allow it without hesitation. Salmond K.C. and Weston, for Hempton, rightly conceded that a Magistrate does have jurisdiction to take notice of non-territorial fishing-rights. They had, as does this Court, “great difficulty” supporting the Magistrate’s view that the Native Land Court has exclusive jurisdiction over such rights, meaning only that Court could examine such matters. With respect, the Magistrate’s decision on that point was wrong. The Magistrate has conflated the power to ascertain customary fishing-rights with that of ascertaining and granting title to customary land, the latter being the exclusive province of the Native Land Court, under section 90 of the Native Land Act, 1909. Section 25 of the Native Land Act, 1909 empowers the Governor to confer upon the Native Land Court special jurisdiction “in any matter or question affecting the

rights of Natives in any real or personal property”, but this must be done through Order in Council. As no such Order has been made, the Native Land Court has no special jurisdiction to deal with customary fisheries or fishing-rights. Any Court may in an appropriate proceeding take notice of customary title; section 90 of the Native Land Act, 1909 does not preclude this. Such an interpretation is supported by sections 84, 85 and 88 of the Fisheries Act, 1908. These make it clear that other Courts have jurisdiction to take notice of customary title. The Privy Council’s decision in Tamihana Korokai v. The Solicitor-General(1) is not authority for the proposition that Maori customary fishing-rights are beyond the jurisdiction of a Magistrate. Rather, that case determined that where a Maori plaintiff claimed ownership of a lakebed, it was the duty of the Native Land Court to hear and adjudicate such a claim. The Privy Council set out the limited bases on which the Native Land Court could be prevented from performing its statutory duty: first, under the Native Land Act, 1909; second, on proof that the lands are Crown lands freed from the customary title of the Natives; and third, that there is a Crown title to the bed of the lake. The case did not decide that, if fishing-rights existed, these could not be proved before a Magistrate. So the Magistrate had jurisdiction to determine whether Waipapakura was exercising a Maori fishing right, and ought to have done so. The question then becomes whether to send the case back to the Magistrate, or whether this Court should determine the appeal and assess damages. Section 163 of the Magistrates’ Courts Act, 1893 provides that this Court may “order a new trial on such terms as it thinks fit, or that judgment be entered for either party as the case may be, or that the case be referred back to the Court below for amendment”. Given the precedential value of this appeal, and the unnecessary procedural delays Waipapakura has already endured, it is appropriate now to decide the substantive question on appeal: whether Waipapakura was exercising an existing fishing right, unaffected by the Fisheries Act regulations. According to Maori custom, the rights of women in tribal lands are equal to those of men: Kapua v. Haimona.(2) Maori women have occasionally brought such concerns directly before the courts (see Locke v. Kahutia(3) as an example of Riperata Kahutia’s advocacy before the Native Land Court, Poverty Bay Commission and Privy Council), but generally it seems that their rights have been underinvestigated and under-recognised in the courts. The Privy Council commented on such matters in Manu Kapua v. Haimoana.(4) There, the Compensation Court had found that certain male Natives had an interest in the Te Akau block, but had made no inquiry or findings in relation to women, as none had claimed an interest in the block. In bringing and pursuing these proceedings, Waipapakura has t­ herefore asserted both her authority and the standing of Maori women in this Court. The regulation which Waipapakura is alleged to have breached, and under which ­Hempton purported to seize her nets, states: “Set-nets having an opening of not more than 3 ft. by 1 ft. 6 in. may be used for taking whitebait in the rivers and streams in the C ­ ounties of Clifton, Taranaki, and Egmont, but no person shall use any groyne, race, or lead in c­ onnection with such nets. No person shall use more than one set-net and no person shall set a line of set-nets across any river or stream in the said counties.” These regulations were authorised by section 5, paragraphs (a), (d) and (l) of the Fisheries Act, 1908. (1) (2)

(1912) 32 N.Z.L.R. 321. [1913] A.C. 761.

(3) (4)

(1887) 5 N.Z.L.R. 214. [1913] A.C. 761.

Mana Wahine

Waipapakura v Hempton—Judgment 355

356  Emma Gattey

Mana Wahine

Waipapakura relies upon section 77, subsection 2 of the Fisheries Act, 1908, a s­ avings clause which provides that “Nothing in this Part of this Act shall affect any existing Maori fishing-rights”. Section 9, subsection 1, paragraph (d) of the ­Fisheries Act, 1908 empowered Hempton, for the enforcement of the provisions of that Act, to seize nets that were illegal or being used illegally. If, due to the savings clause, Waipapakura’s method of whitebaiting was not in breach of the fishing regulations, the seizure of her nets was unlawful and she is entitled to their immediate return. Nevertheless, section 77, subsection 2 does not create Maori fishing-rights, but recognises and preserves those already extant. It is a savings provision, not a substantive provision intended to enact or delineate relevant rights. To hold otherwise would be an artificial reading of the statute. However, Salmond and Weston submit that, to exist, customary rights must have been established by legislation independently of the Fisheries Act, 1908. They submit that the savings clause is not a general exemption of Maori from that Act; it does not preserve to Maori the right to fish as they did before the passing of the 1908 Act. The phrase “existing Maori fishing-rights” in section 77, subsection 2 is not defined in the Act. Nor has Parliament expressly stated that “existing” rights must be conferred by statute. In the absence of such provisions, the broad language of the savings clause suggests that Parliament desired to preserve Maori fishing-rights as widely as possible. The Courts will ordinarily presume that Parliament intends to legislate in accordance with the Crown’s obligations under the Treaty of Waitangi. This guaranteed to Maori “the full, exclusive and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession”. (I acknowledge, too, the covenant as expressed in Te Tiriti o Waitangi, and the linguistic differences between the English and Maori v­ ersions.) Given the solemn compact between the Crown and Maori in the Treaty of Waitangi, ­Parliament should be presumed to have intended this savings provision to preserve Maori fishing-rights as extensively as possible. In this context, it is inappropriate to read restrictive words into the provision, requiring separate statutory incorporation of the fishing-rights. Section 77, subsection 2 therefore recognises both Treaty-based and common law native customary rights, if these can be established, insulating them from the requirements and restrictions of the Fisheries Act. In asking “what rights exist?”, Salmond and Weston distinguish two separate strands of Maori rights: the first is the right to fish on their own lands, a territorial fishery; the second is the right to fish on Crown lands, a non-territorial fishery. They submit that the first, territorial class is undoubted and preserved by section 77, subsection 2. But, they say, Maori have never had a claim to land under tidal waters, as this land has belonged to the Crown since the cession of sovereignty. Native customary title ends at the high-water mark, so does not include tidal regions. They submit that this legal principle is unaffected by the Treaty of Waitangi or Native land legislation, and that, apart from legislation, the Treaty of Waitangi is merely a bargain binding upon the conscience of the Crown, not a source of legal rights. There is no legislation, they say, granting Maori the right to fish on land owned by others, and the only customary rights recognised in the Native legislation concern rights in land. With respect, these submissions treat the law of this country as something of a blank slate prior to the advent of English common law. Salmond and Weston’s arguments tend to ­suggest that Waipapakura’s customary fishing right has been conjured from the ether rather than being based on long-established practice.

When the Crown acquired sovereignty over this country, it acquired a radical or underlying title. However, Maori (the prior inhabitants of the land) were already here, adhering to their own system of laws and customs. Accordingly, the radical title that the Crown acquired was qualified. It was made subject to existing native rights. As determined by the Privy Council in R v. Symonds,(5) these cannot be extinguished (at least in times of peace) except by specific legislation which clearly and plainly takes away the right. Thus Maori customary rights subsisted, as recognised and promised by the Treaty of Waitangi, following the establishment of British sovereignty and the reception of so much of the common law as is “applicable to the circumstances of … the Colony” (as it is expressed in the ­English Laws Act, 1858). It is therefore impossible to conclude that beneficial ownership of the land, forests, fisheries, &c. passed absolutely to the Crown so as to displace any presumptive customary title or rights of the Maori. The common law as received in New Zealand was modified by recognised Maori customary property interests. Those existing interests were circumstances of the Colony that required modification of the principles of English law. These Maori property interests are usually, although not invariably, communal. If any Maori c­ ustom gives interests in the tidal waters, this would prevail over any contrary presumption derived from English common law. Maori thus do not require auxiliary statutes to enact their customary rights. Counsel’s description of the Treaty of Waitangi as “merely a bargain binding on the conscience of the Crown, and … not a source of legal rights” in any circumstances is not persuasive. The significance of the Treaty, as a foundational agreement between the Crown and the Maori leadership, cannot be overstated. It goes to the honour of the Crown. In ascertaining the import of the Treaty, this Court is not bound by the dicta in Wi Parata v. Bishop of Wellington.(6) In that case, Prendergast, C.J. conflated imperium (or the Crown’s authority over these islands, to the exclusion of all other powers) with dominium (or private ownership of land), denying any conception of prior Maori governance, property rights, and customary law. Prendergast, C.J. held that in New Zealand native proprietary rights need not be “invariably respected”, nor must “the old law of the country” be administered to any extent, because “in the case of primitive barbarians, the supreme executive Government must acquit itself … of its obligation to respect native proprietary rights, and of necessity must be the sole arbiter of its own justice”.(7) This dismissal of Maori customary law was not only inaccurate, but also directly contravened statutory directions to the Native Land Court, which explicitly required it to consider, on some occasions, the “Ancient Custom and Usage of the Maori people”(Native Rights Act, 1865, section 3). The Wi Parata judgment discussed the Native Rights Act, 1865 with some perplexity, declaring that that Act spoke “as if some such body of customary law did in reality exist.” Yet, according to the Court, “no such body of law existed”.(8) The judgment therefore ignored the ­statutory imprint Parliament has placed on Maori customary law, a judicial approach that is antagonistic both to parliamentary sovereignty and to the mana of Maori people. As Stout, C.J. notes, we are not bound by all the expressions used in Wi Parata. I would add that, in the matter of the courts’ ability to recognise Maori custom, that judgment should not be regarded as good law.

(5) (6)

(1847) N.Z.P.C.C. 387. SC 1877 3 N.Z. Jur. (N.Z.) 72.

(7) (8)

SC 1877 3 N.Z. Jur. (N.Z.) 72, p. 78. SC 1877 3 N.Z. Jur. (N.Z.) 72, p. 79.

Mana Wahine

Waipapakura v Hempton—Judgment 357

358  Emma Gattey

Mana Wahine

In Nireaha Tamaki v. Baker,(9) the Privy Council partly rejected the Wi Parata reasoning, which had later been followed in the New Zealand Court of Appeal to the effect that “there is no customary law of the Maoris of which the Courts of law can take cognizance”.(10) Rejecting that view, Lord Davey, delivering the judgment of their Lordships, held “this argument goes too far”, and “it is rather late in the day for such an argument to be addressed in a New Zealand Court.” Ultimately, their Lordships’ reversal of the Court of Appeal’s decision hinged on the need for strict compliance with the statutory regime, laid down by Parliament, for dealing with the relevant Maori lands, rather than on common law recognition of Maori customary law. It remains a powerful reaffirmation of the legal relevance of Maori custom. A preferable approach is that found in R v. Symonds,(11) a test case showing evident respect for Maori customary land tenure. Chapman J. noted that “it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers”. Thus the Privy Council found that the Crown’s paramount title was burdened by the customary property rights of Maori owners. In the interests of Maori protectionism “and for the sake of humanity,” Native title could be lawfully extinguished, said the Court, but only by the Queen. These observations implicitly recognise the prior existence of Maori customary land rights. Those rights, and the laws which girded them, were “entitled to be respected” until such time as the Crown saw fit unequivocally to extinguish them, by lawful means. I admit to some surprise that counsel for Waipapakura has not relied upon Stout, C.J.’s decision in Baldick v. Jackson,(12) in which this Court held that the Crown’s right to recover whale carcasses was inapplicable to the circumstances of the Colony in view of established Maori custom and the Treaty’s premise that “their [Maori] fishing was not to be interfered with.” The appellants in that case asserted a right in a whale carcass, based on an ­English statute which expressly claimed a right to recover dead whales as part of the royal p ­ rerogative.(13) This Court, however, recognised that such a right would be impossible to assert without claiming it against the Maori, who were accustomed to engage in whaling, and that “the Treaty of Waitangi assumed that their fishing was not to be interfered with­—they were to be left in undisturbed possession of their lands, estates, forests, fisheries, &c.”. This case supports the conclusion that an English statute claiming a right to whales as part of the royal prerogative was never applicable to the circumstances of the Colony. This is not to assert that a statute of the New Zealand Parliament, such as the ­Fisheries Act, 1908, cannot resolve the matter; parliamentary sovereignty dictates the opposite. H ­ owever, as noted above, this statute must be read in light of the Treaty’s provision that Maori were to be left in undisturbed possession of their fisheries. Waipapakura is accustomed to fishing for whitebait in the Waitara River, in tidal waters abutting her ancestral lands. This existing customary right was preserved initially by the Treaty, and more recently by section 77, subsection 2 of the Fisheries Act. Unless explicitly extinguished or circumscribed by statute, Waipapakura’s rights remain, and carve out an exception to the provisions and

(9) [1901] N.Z.P.C.C. 371, pp. 382–383. (10) (1894) 12 N.Z.L.R. 482. (11) (1847) N.Z.P.C.C. 387.

(12) (1910) 30 N.Z.L.R. 343, p. 345. (13) Statute 17, Ed. II, c. 2.

r­ egulations of the Fisheries Act. As she was not illegally using her set nets on 22nd of August, 1913, Hempton’s seizure of her nets was wrongful conversion, and her suit for their return must be granted. That would be sufficient to allow the appeal, but I proceed to address counsel’s ­alternative submissions, to which the majority has given such short shrift. Hutchen, for Waipapakura, submitted that even if no legislation specifically affirms the ­Treaty’s grant of such customary fishing-rights, the rights preserved by section 77, subsection 2 are not necessarily statutory rights, but fishing-rights exercised from time immemorial, relying on May v. Belleville.(14) Such ancient customs could, of course, be a source of legal rights even in England, provided they meet the criteria for common law recognition. It was established in The Case of Tanistry(15) that the rights of the prior inhabitants of lands settled by the Crown can survive the transfer of sovereignty, provided they satisfy the requirements of reasonableness, certainty, continuity, immemorial usage and compatibility with the royal prerogative. The common law can therefore give effect to reasonable Maori customs or practices which have been in existence from time immemorial and practised continuously amongst the claimant’s people as an integral part of their lives and identity. In ascertaining such Maori customary rights, it is essential to avoid conceptualising their character in exclusively English common law terms. I note, therefore, the potential undesirability and invalidity of an approach that parcels out land rights and use rights to different parties, or arbitrarily severs land rights from use rights in water, when Maori seem to view their rights in the round, as part of a way of life connected with the land. To superimpose English legal precepts on Maori concepts of property and authority may be quite artificial. It may fail to acknowledge the lack of congruence between Maori and European ideas. Thus, in a future case where there are genuine difficulties in recognising the existence or character of a certain custom, it may be appropriate for the Court to propose modified tests for common law recognition of Maori custom, specifically adapted to New Zealand’s situation, and based more squarely on Maori people’s own conception of their rights. In this case, there is no suggestion that Waipapakura’s customary whitebaiting ­practices are unreasonable, in the circumstances. She is drawing upon an important resource, as her people have probably done for centuries. She is simply using food available in the waters abutting her ancestral lands, as an obvious and plentiful means of nourishing her family, providing hospitality to her guests, and sustaining the prestige of her tribe. The right claimed is capable of sufficiently precise definition. The evidence put before the Magistrate, even if he refused to act on it, seems quite sufficient to satisfy the common law’s tests for recognition of the custom claimed. Not every matter concerning the scope of such rights needs to be settled here today. I have no difficulty finding, on the evidence put before the Magistrate in this case, that there is a compelling case for recognition of the fishing right claimed. The unwarranted seizure of Waipapakura’s nets is likely to have wrought adverse ­consequences for her and her people. It has been over 11 months since their confiscation. This imposed hiatus in exercising a customary fishing right may have deprived ­Waipapakura of her ability to feed, and so ensure the survival of, her family, to welcome guests, and ultimately, to maintain her people’s authority and prestige. The adverse consequences are likely to have impacted upon her i­mmediate and (14) [1905] 2 Ch. 605.

(15) (1608) Davies 28, 80 E.R. 516.

Mana Wahine

Waipapakura v Hempton—Judgment 359

360  Emma Gattey

Mana Wahine

extended family. This Court will not allow officers of the Crown to act ultra vires, based on misunderstanding of, or failure to adhere to, legislation clearly designed to protect customary Maori fishing-rights. By denying Maori people their right to assert their prerogatives, and depriving them of their traditional means of self-sufficiency, the Crown denies its fundamental legal duty actively to protect their interests. Such a unilateral view of the relationship established under the Treaty of Waitangi is constitutionally unsound. It undermines positive relations between the signatories and does no honour to the Crown. The Courts will not be complicit in it. Above all, it is inconsistent with section 77, subsection 2 of the 1908 Act. I would therefore award Waipapakura the £10 damages that she claims, though it hardly seems an adequate sum. Furthermore, as Waipapakura was legally using her set-nets at the time, it follows that they were improperly seized by Hempton. I would therefore order Hempton to return the nets immediately. Given the importance of this appeal, the parties agreed to its removal to the Full Court of the Supreme Court, on the basis that the Crown should pay the appellant’s costs in any event. It is therefore unnecessary to deal with the question of costs.

Environment

362 

20 Commentary on Squid Fishery Management Company Ltd v Minister of Fisheries An Ecofeminist Approach to the Impact of Fisheries on Sea Lion Mortality JOANNA MOSSOP

The Original Decision Squid Fishery Management1 is one of several judicial reviews brought by the NZ fisheries industry in the space of eight years challenging decisions of the Minster of Fisheries in relation to limits placed on fishing activities to protect marine mammals.2 In each case the attempt by the Minister to apply a precautionary approach was overturned due to perceived failures in considering the relevant information. This case sought review of the Minister’s decision to set a limit on the number of sea lions that could be caught by the squid fishery operating around the Auckland Islands.3 The limit is referred to in the case as the maximum allowable limit on fishing-related mortality (MALFiRM).4 According to s 10 of the Fisheries Act 1996 (NZ), decisions should be based on the best available information. However, decision makers should be cautious when information is uncertain, unreliable, or inadequate. The absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to ensure sustainability. These latter requirements are seen as an expression of the precautionary approach. Under international law, the precautionary approach is 1 

Squid Fishery Management Co Ltd v Minister of Fisheries (CA39/04, 7 April 2004). also Northern Inshore Fisheries Co Ltd v Minster of Fisheries (HC Wellington CP235/01, 4 March 2002); Squid Fishery Management Co Ltd v Minister of Fisheries (HC Wellington CP20/03, 11 April 2003); New Zealand Federation of Commercial Fishermen Inc v Minister of Fisheries (HC Wellington CIV-2008-485-2016, 23 February 2010). 3  The ability to set a limit is contained in the Fisheries Act 1996 (NZ), s 15(2) which states that the Minister may ‘take such measures as he or she considers are necessary to avoid, remedy, or mitigate the effect of fishing-related mortality on any protected species, and such measures may include setting a limit on fishing-related mortality’. 4  See the discussion below about Wheen J’s decision not to use this acronym in her judgment. 2 See

364  Joanna Mossop designed to ensure that uncertainty of information is not used as an excuse to postpone cost-effective measures to protect the environment from serious or irreversible harm.5 New Zealand sea lions are one of the most rare and highly localised pinnipeds. Fewer than 12,000 individuals existed at the time of the case and they are vulnerable because there are only two breeding sites and any disruption (such as an oil spill or epidemic) could threaten the whole species.6 The Department of Conservation has taken an approach that the population should be kept close to carrying capacity, with the hope that new rookeries will be established due to pressure of numbers at existing sites. Sea lions are susceptible to being caught in squid trawl nets and drowned. At the time of the case, sea lion exclusion devices (SLEDS) were being trialled in the hope that this would allow more sea lions to escape. SLEDs are a metal grid inserted into the net that is supposed to allow sea lions to escape the net. However, the evidence shows that as many as 55% of sea lions ejected from SLEDs may suffer injuries that compromise their survival.7 It is noteworthy that other squid fisheries in New Zealand and around the world use a different fishing method—jigging—that could result in no sea lion catches.8 However, it is a more expensive method than trawling. In order to determine how many sea lions were killed by the squid fishery at the ­Auckland Islands, the Ministry of Fisheries estimated the average number of sea lions caught in a single deployment of a net, known as the ‘strike rate’. The MALFiRM was then divided by the strike rate to give the maximum number of tows able to be conducted before the fishery was closed.9 Until 2004, no allowance was made for the use of SLEDs in an attempt to avoid mortality. Prior to the 2003–04 fishing season, the Minister used a formula known as the Wade rule to determine the maximum number of sea lions that could be caught before the fishery would be closed. The Wade rule was considered to be very cautious. Under this rule, the MALFiRM for 2003–04 was 70 sea lions. In 2003 a new model known as the Breen Kim model was developed which was considered to be a better approach for assessing the impact of fishing activities on the sea lion ­population.10 However, there was some doubt cast on the model by a review by Dr ­Goodman of Montana State University which, although supportive, expressed caution about the statistical methods and level of data used by the Breen Kim model.11 For 2003–04, the Ministry assessed a range of options for setting the MALFiRM using the Breen Kim model. The industry had argued that unconstrained fishing could be allowed under the Breen Kim model without endangering the sustainability of the sea lion ­population, but this was rejected by the Ministry.12 The options reported to the Minister

5 

Rio Declaration on Environment and Development (adopted 14 June 1992) A/CONF.151/26, principle 15. Chilvers, ‘New Zealand Sea Lions Phocarctos hookeri and Squid Trawl Fisheries: Bycatch Problems and Management Options’ (2008) 5 Endangered Species Research 193. Estimates are that 86% of the population of sea lion are found on the Auckland Islands. The rest of the population breed on Campbell Island. 7  ibid 198. 8  ibid 201. 9  Squid Fishery Management (n 1) [27]–[28]. 10  ibid [34]. 11  ibid [54]. 12  ibid [41], [49] and [52]. 6  BL

Squid Fishery Management Company Ltd v Minister of Fisheries—Commentary 365 were: (1) Rule 310, which approximated the number of sea lions allowed to be caught under the Wade rule; (2) Rule 305, which was half of that number; (3) Rule 320, which was twice the number of sea lions allowed under the Wade rule; and (4) an adaptive rule depending on the population levels, which for that year would be 75 sea lions. Dr Breen advised the Ministry that all of the rules except unconstrained fishing met the agreed criteria for achieving the conservation objectives. However, it seemed that these rules were conservative, and the Court noted that a much higher MALFiRM (including up to nine times the number of sea lions under the Wade rule) would be consistent with the objectives set by the Ministry in relation to the sustainability of the sea lion population.13 The Minister, during a meeting to discuss the MALFiRM, asked a senior official whether there was a series of rules which effectively doubled or tripled the MALFiRM. In response, the official said that rules that were more restrictive on fishing had been rejected. The Court of Appeal found that this response could be interpreted to mean that Rule 320 produced an outcome close to the point at which the management objectives were not met, which was not the case. The Minister decided to set the MALFiRM at 62 using Rule 310, which produced a similar level of mortality to that established under the Wade rule. He also established a strike rate of 5.3% with a 20% discount for the use of SLEDs. He highlighted the uncertainties underlying the Breen Kim model and the available information. Although a higher ­MALFiRM may not have posed a threat to the population, caution was required and he stated that he had taken a precautionary approach. It was this decision that was challenged by the appellant. In the High Court, France J rejected the application for judicial review, but this was overturned by the decision of the Court of Appeal. In the decision delivered by Tipping J the Court of Appeal found that s 15 of the Fisheries Act required the Minister to consider only the impact of fishing on the sea lion population as a whole and not the desirability of reducing individual deaths.14 In balancing utilisation objectives and conservation values, ‘the legislative framework required the Minister to form a view as to the extent to which (or perhaps the point at which) utilisation of the squid resource threatened the sustainability of the sea lion population’.15 This was because s 15 only permitted the Minister to take measures he or she ‘considers necessary’ to avoid or mitigate effects on a protected species.16 The Minister was not required to impose a rule that was on the cusp, but he needed to ascertain where the cusp was. However, the Court found that the Minister had not, on the facts, formed this view.17 Instead, the Court decided that the Minster had effectively applied the superseded Wade rule. Although it was open to the Minister to take a precautionary approach to decision making, this had to be based on the best available information, which required him to make the determination of the point at which utilisation threatened sustainability.18

13 

ibid [58]. ibid [7]. 15  ibid [79]. 16 ibid. 17  ibid [103]. 18  ibid [77]–[80]. 14 

366  Joanna Mossop

Ecofeminism and Wheen J’s decision According to one feminist perspective, the subjugation of nature is similar to the subjugation of women. Nature has ‘become something to be dominated, overcome, made to serve the needs of men’.19 Natural resources are to be exploited by human beings rather than seen as part of nature. Humans believe in unlimited control over nature and in science’s ability to solve any problem.20 Nature is objectified and dominated by people.21 Therefore, the connection between people and the natural world has been broken.22 Ecofeminism attempts to evoke a different view of the relationship between humans and nature. It is theoretically very close to ideas of ‘deep ecology’.23 In the same way that feminists argue that men and women are equal, ecofeminists suggest that there is no hierarchy in nature ‘among persons, between persons and the rest of the natural world, or among the many forms of nonhuman nature’.24 Ecofeminism requires us to consider our relationship with living creatures as one of ‘kinship’ rather than superiority.25 Ecofeminists also argue against environmental simplification in which species are forced into extinction, instead supporting biological diversity.26 Finally, ecofeminists frequently criticise the social institutions which subjugate nature, including ideas of linear economic growth and development, and a focus on technological, medical and scientific achievement.27 An ecofeminist critique of the Squid Fishery Management case can draw attention to several factors. First, the theme of domination by humans over the environment is at the core of the Fisheries Act and the decision. The case pits the commercial interest of the fishing industry against the interests of maintaining a population of a threatened species—sea lions. The purpose of ensuring sustainability in the Act is defined as ‘maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations and avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment’.28 The fact that it is the Fisheries Minister, as opposed to the Minister of Conservation who makes the decision about fishing-related mortality means that the interests of the commercial fishing industry will always be taken into account.29 Thus, the structure of the Act makes it very difficult to favour protection of species over fishing interests.

19  Y King, ‘Toward an Ecological Feminism and a Feminist Ecology’ in JS Dryzek and D Schlosberg (eds), Debating the Earth: The Environmental Politics Reader (Oxford, Oxford University Press, 2005) 401. 20 ibid. 21  A Collard, Rape of the Wild: Man’s Violence against Animals and the Earth (Bloomington, Indiana University Press, 1989) 1. 22  M Adair and S Howell, ‘The Subjective Side of Power in J Plant (ed), Healing the Wounds: The Promise of Ecofeminism (Toronto, Between the Lines, 1989) 219. 23  Deep ecology rejects a human-centred or utilitarian approach to the environment, instead advocating that all parts of the environment are of equal value and should be free from human domination. See W Fox, ‘The Deep Ecology-Ecofeminism Debate and its Parallels’ (1989) 11 Environmental Ethics 5. 24  King, ‘Toward an Ecological Feminism’ (n 19) 404. 25  EL Hughes, ‘Fishwives and Other Tails: Ecofeminism and Environmental Law’ (1995) 8 Canadian Journal of Women and Law 502, 517. 26  King ‘Toward an Ecological Feminism’ (n 19) 404. 27  Hughes, ‘Fishwives and Other Tails’ (n 25) 505. 28  Fisheries Act 1996, s 8(2). 29  NR Wheen, ‘How the Law Lets Down the “Down-Under Dolphin”—Fishing-Related Mortality of Marine Animals and the Law in New Zealand’ (2012) 24 Journal of Environmental Law 477, 487.

Squid Fishery Management Company Ltd v Minister of Fisheries—Commentary 367 The drafting of other parts of the Fisheries Act contributes to this effect. For example, the Court of Appeal decision discounted any possibility that the Minister could consider measures aimed at eliminating or reducing individual deaths.30 An ecofeminist approach might consider this contrary to the inherent dignity and value of individuals in contrast to the calculated gamble of preserving the species as a whole. In her feminist judgment, Wheen J argues that a fundamental principle should be that ‘in the pursuit of human goals, as little violence as possible should be done to other species’. She uses this to build an interpretation of the Act that eschews a simple balancing of fishing and conservation interests. The perceived hierarchy between human interests and the environment is reinforced in Squid Fishery Management by the fact that the Court of Appeal took a very narrow, technical, approach to deciding whether the Minister had based his decision on the best available information. The Minister made a conservative decision based on the fact that there was some uncertainty with the new model used for predicting the impacts of increased sea lion mortality. The level of mortality was broadly consistent with previous limits therefore allowing for the squid fishery to proceed. Rather than giving credit for the precautionary approach taken, the Court took a technical approach of requiring absolutely every possible argument and piece of information to be before the Minister before his decision is considered sound. As a result, the interests of the commercial fishing industry prevailed over the interests of the sea lions. Another aspect of the technical approach is the majority’s use of ‘MALFiRM’ to describe the number of sea lions killed. This is the abbreviation used under the Marine Mammals Protection Act 1978, but more accurately, s 15 of the Fisheries Act refers to fisheries related mortality. Wheen J has preferred to use the latter term as the ­Minister’s decision was made under the Fisheries Act. Even more importantly, the majority’s use of an acronym to stand for the killing of a protected mammal risks reinforcing a sense of distance from the act of killing. Wheen J’s opinion is critical of the Court of Appeal’s finding that the legislative framework required the Minister to form a view as to the extent to which utilisation of the squid resource threatened the sustainability of the sea lion population.31 In her opinion, the Fisheries Act can be interpreted to place a greater emphasis on avoiding sea lion deaths rather than creating pressure to maximise fishing effort. The feminist judge emphasises the broader context of the Fisheries Act, including the inclusion of environmental principles in s 9, the broad definition of ‘effects’ under the Act, and the international law whakapapa (genealogy) of much of the Act. Her suggestion that the Minister’s decision should have started by considering what is best for the sea lions, and that utilisation that has an adverse effect on the sea lions should be avoided, is a rebalancing of the assumptions underlying the Squid Fishery Management case. By placing the environment at the forefront of the decision and removing the assumption that marine mammals are acceptable by-catch, Wheen J’s decision reflects an ecofeminist approach that attempts to move away from a view of human interests as dominating over the interests of the environment. Her critique of the fishing industry’s resistance to obtaining information that would reduce uncertainties about the impact of fishing on sea lions is another expression of the rejection of commodification of living creatures.

30  31 

Squid Fishery Management (n 1) [7]. ibid [79].

368  Joanna Mossop Another important aspect of the feminist judge’s interpretation of the Fisheries Act is found in the difference in approach to the principles in s 10 of the Act. A number of commentators have been very critical of the decisions in the Squid Fishery Management case and other fishing-related cases. The primary criticism has been aimed at the interpretation of s 10 of the Fisheries Act, and the courts’ approach to the relationship between the best available information principle and the precautionary approach. The Court of Appeal in this case acknowledged that the Minister was entitled to apply the precautionary approach, but criticised the Minister’s use of the information provided to him. Commentators have pointed out that mistakes in the Ministry’s information have been used in the fisheries cases to protect existing commercial operations rather than the environment, which is contrary to the purpose for which the precautionary approach was included in the Fisheries Act.32 It has been suggested that the courts in these cases have emphasised information management rather than crediting the Minister for taking a precautionary approach.33 In other words, the [B]est information requirement in the Act reduces the ability to make precautionary decisions because decisions to close fisheries due to concerns about unacceptable impact on threatened bycatch species cannot be made until all presently available relevant scientific information is considered and correctly understood.34

The fact that the precautionary approach is contained in international law, and therefore the Fisheries Act must be interpreted consistently with this, is also significant.35 Kerr has argued that this ‘creates an even higher standard [to observe the precautionary approach] than would a judicially-imposed mandatory relevant consideration model’.36 Wheen J identifies explicitly the potential clash of the best available information principle and the precautionary approach. She is highly critical of the way the other members of the Court give priority to the best available information as the starting point for the analysis. Rather, she contends, so long as the Minister takes the best available information into account, he is required to rely on the precautionary approach as a basis for a decision that prioritises the broader interests of sea lions. This requirement to take the best available information into account was also emphasised by Mallon J in the NZ Federation of Commercial Fishermen v Minister of Fisheries case.37 Mallon J found that the Minister has discretion as to the information he or she may take into account, and as long as the Minister

32  CJ Iorns Magallanes, The Precautionary Principle in the New Zealand Fisheries Act: Challenges in the New Zealand Court of Appeal (Wellington, Victoria University of Wellington Legal Research Paper No. 59/2014) dx.doi.org/10.2139/ssrn.2079837. 33  D Modeste, ‘The Precautionary Principle and the Fisheries Act’ [2011] New Zealand Law Journal 179, 181. 34  W Gullett, ‘The Threshold Test of the Precautionary Principle in Australian Courts and Tribunals: Lessons for Judicial Review’ in E Fisher, J Jones and R von Schomberg (eds), Implementing the Precautionary Principle: Perspectives and Prospects (Cheltenham, Edward Elgar, 2006) 182, cited in Wheen, ‘Down-Under Dolphin’ (n 29) 495. See also CJ Iorns Magallanes and G Severinsen, ‘Diving in the Deep End: Precaution and Seabed Mining in New Zealand’s Exclusive Economic Zone’ (2015) 12 New Zealand Journal of Public and International Law 201, 208. 35  See Fisheries Act 1996, s 5(a) which provides: ‘This Act shall be interpreted, and all persons exercising or performing functions, duties, or powers conferred or imposed by or under it shall act, in a manner consistent with (a) New Zealand’s international obligations relating to fishing …’ 36  AM Kerr, ‘Untapped Potential: Administrative Law and International Environmental Obligations’ (2008) 6 New Zealand Journal of Public and International Law 81, 95. 37  NZ Federation of Commercial Fishermen (n 2).

Squid Fishery Management Company Ltd v Minister of Fisheries—Commentary 369 is accurately informed of what information is available, he or she does not need to take it into consideration so long as there is a good reason not to do so.38 The case supported the Minister’s right to take a precautionary approach where information is uncertain.39

Conclusion The traditional approach to fisheries management and the interaction with sea lions has not achieved the goal of maintaining the sea lion population at its pre-existing l­evels. Instead, the population of New Zealand sea lions steadily declined between 1998 and 2015.40 Although there may be several causes of the decline, including disease, the impact of fisheries on the population is undeniable. If the Court had adopted an approach more similar to that taken by Wheen J, it is possible this decline could have been arrested. Of course, one of the limitations of taking an ecofeminist approach to the interpretation of legislation is that, under a system of Parliamentary supremacy, the legislation must prevail where it is unambiguous. If the underlying legislation is contrary to the goals of ecofeminism this poses a serious challenge to the ecofeminist judge who is limited in her ability to affect the underlying principles. This indicates that efforts to adopt an ecofeminist legal framework must involve the legislative body. However, given the general principles set out in the Fisheries Act, Wheen J was able to interpret this legislation in a manner that supported a more sympathetic approach to the protection of New Zealand sea lions.

38 

ibid [38]–[40]. ibid [281]. estimated sea lion population at the Auckland Islands in 1998 was 12799—in 2015 the population was estimated to be 8011. BL Chilvers and S Meyer, ‘Conservation Needs for the Endangered New Zealand Sea Lion, Phocarctos Hookeri’ (2017) Aquatic Conservation: Marine Freshwater Ecosystems 1. See also S Meyer et al, ­‘Population Dynamics Reveal Conservation Priorities of the Threatened New Zealand Sea Lion Phocarctos ­Hookeri’ (2015) 162 Marine Biology 1587. 39 

40  The

IN THE COURT OF APPEAL OF NEW ZEALAND

CA39/04 BETWEEN

SQUID FISHERY MANAGEMENT COMPANY LIMITED Appellant

AND

MINISTER OF FISHERIES First Respondent

AND

CHIEF EXECUTIVE OF MINISTRY OF FISHERIES Second Respondent

Hearing:

5 April 2004

Coram:

Hammond J William Young J O’Regan J Wheen J

Appearances:

B A Scott and G T Carter for Appellant U R Jagose and R E Schmidt for Respondents

Judgment:

7 April 2004

Reasons:

13 July 2004

REASONS OF WHEEN J Introduction [120] It is estimated that nearly 1,600 New Zealand sea lions have drowned in trawl nets in the Auckland Islands commercial squid fishery since 1987. In order to avoid, remedy or mitigate the effect of this fishing-related mortality on the sea lion, the Minister of Fisheries (“the Minister”) has, since

Squid Fishery Management Company Ltd v Minister of Fisheries—Judgment 371

1992, set a fishing-related mortality limit under the Fisheries Act 1996 (“the Act”) for the squid fishery. This case concerns how the Minister set the mortality limit of 62 sea lion deaths for the 2003-2004 squid fishing season and whether this limit was “necessary” to protect the Auckland Islands sea lion population, or whether a much higher limit should have been considered and applied by the Minister. [121] In the High Court, Ellen France J found in favour of the Minister. The Squid Fishery Management Company (“the squid fishers”) appeal to this Court. Hammond, Young and O’Regan JJ, in a decision I have seen in draft form, ­conclude that the squid fishers succeed as the Minister’s decision was not consistent with the Act. I agree with their conclusion but for different reasons. The squid fishery and New Zealand sea lions [122] The New Zealand sea lion is one of three endemic marine mammals. Both the population size and the range of this species have been ­significantly reduced by human activities over the last 200 years. Today, the New Zealand sea lion is recognised as a threatened species under the Marine Mammals Protection Act 1978 by the Department of Conservation, and was classified on the Department’s Threat Classification List in 2002 as range restricted and conservation dependent. [123] Ninety per cent of the estimated total New Zealand sea lion ­population of 13,000 breeds in rookeries on the Auckland Islands, in New Zealand’s subantarctic islands. Together the Auckland Islands form a ­protected National Nature Reserve, that is surrounded by a marine mammal sanctuary and the Motu Maha Marine Reserve. The sanctuary protects the sea lions from fishing activities in the waters out to twelve nautical miles offshore from the Auckland Islands. The sea lions are also protected by the Marine Mammals Protection Act 1978, which makes it an offence to catch, kill or injure a marine mammal (s 9) but provides a defence for accidental or incidental deaths and injuries (caused for example by fishing activities) that are reported to authorities (s 26(4)). [124] A component of the sea lion diet, particularly during the breeding season, comprises arrow squid, which congregate annually near the Auckland Islands to spawn and subsequently die. Conflict arises because the spent squid are also the target of commercial squid fishers operating in

372  Nicola Wheen

­ sheries management area SQU6T, which lies beyond the 12 nautical mile fi limit of the sanctuary and marine reserve. Squid fishing is financially lucrative, however the SQU6T fishery has been responsible for large numbers of sea lion deaths since squid fishing began in New Zealand in the late 1970s. These deaths occur when sea lions feeding on squid are caught and drown in trawl nets. As a matter of fact, there would be no squid fishing-related sea lion mortalities in SQU6T if this fishery were not New Zealand’s only squid fishery where trawling is used. [125] The conflict between an important feeding ground for the breeding sea lions and the financially rewarding fishery is managed by the Minister under the Act using an annual fishing-related mortality limit. In each fishing season, the Minister sets a limit on sea lion mortalities for the fishery, which is ­calculated by Ministry officials on the advice of a scientific committee and after consulting the Minister of Conservation and industry groups. When the limit is deemed to have been reached, the Minister closes the fishery for the season. The legal context for the Minister’s decision The Act’s purpose and principles [126] The Minister’s decisions to set fishing-related mortality limits are made under s 15(2) of the Act. The Minister is required to “bear in mind and conform with the purposes of the legislation” when exercising his powers under the Act (Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries [2002] 2 NZLR 158 at para [45]). The purpose of the Act is set out in s 8(1): 8 Purpose (1) The purpose of this Act is to provide for the utilisation of fisheries resources while ensuring sustainability.

[127] The words “while ensuring” make it clear that while fisheries are to be used, ­sustainability is the bottom line. Utilisation is only possible if sustainability is ensured. This bottom lines approach, which brooks no compromise of the need to ensure s­ ustainability, may be distinguished from a balancing approach, where give and take between utilisation and sustainability is called for. [128] The bottom lines approach is consistent with New Zealand’s international obligation in the United Nations Convention on the Law of the

Squid Fishery Management Company Ltd v Minister of Fisheries—Judgment 373

Sea 1982, article 61.2, to ensure that the maintenance of the living resources of the exclusive economic zone is not endangered by overexploitation. The relevance of this Convention to understanding New Zealand’s fisheries legislation was established in Greenpeace New Zealand Inc v Minister of Fisheries (CP492/93, High Court, Wellington Registry, 27 November 1995, p 18). [129] In s 8(2), the Legislature has expressly interpreted the words “ensuring ­sustainability” in s 8(1) to mean: (a) Maintaining the potential of fisheries resources to meet the reasonably ­foreseeable needs of future generations; and (b) Avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment.

Paragraph (a) clearly applies to the context of harvestable species, but equally ­paragraph (b) applies to the context of fishing-related mortalities of a protected species. In the squid fishing context, s 8 essentially says that the Act’s purpose is to provide for the ­utilisation of the squid fishery while ensuring that any adverse effects of squid fishing on New Zealand sea lions, which are part of the aquatic environment, are avoided, ­remedied or mitigated. [130] Section 2 of the Act defines “effect” very widely: effect means the direct or indirect effect of fishing; and includes— (a) Any positive or adverse effect; and (b) Any temporary or permanent effect; and (c) Any past, present, or future effect; and (d) Any cumulative effect which arises over time or in combination with other effects— regardless of the scale, intensity, duration, or frequency of the effect; and also includes— (e) Any potential effect of high probability; and (f) Any potential effect of low probability which has a high potential impact.

The breadth of this definition significantly impacts on both the meaning and reach of “ensuring sustainability” in s 8(1)—given that this means, inter

374  Nicola Wheen

alia, avoiding, remedying or mitigating adverse effects—and on the scope of the Minister’s power to set a fishing-related mortality limit under s 15(2), as discussed below. [131] Section 2 of the Act also defines “aquatic environment” and, consequentially, “aquatic ecosystem” and “aquatic life”: aquatic environment— (a) Means the natural and biological resources comprising any aquatic ­ecosystem; and (b) Includes all aquatic life and the oceans, seas, coastal areas, inter-tidal areas, estuaries, rivers, lakes, and other places where aquatic life exists aquatic ecosystem means any system of interacting aquatic life within its natural and physical environment aquatic life— (a) Means any species of plant or animal life that, at any stage in its life history, must inhabit water, whether living or dead; and (b) Includes seabirds (whether or not in the aquatic environment).

Sea lions are natural or biological resources that form part of an ecosystem. They are aquatic life, and the waters in which they live are part of the aquatic environment. Again, the scope of these definitions broadens the reach of the purpose of the Act in s 8(1), which must be borne in mind by the Minister as he sets a fishing-related mortality limit under s 15(2). [132] Section 9 sets out important environmental principles that the ­Minister must take into account when setting a fishing-related mortality limit: 9  Environmental principles All persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following environmental principles: (a) Associated or dependent species should be maintained above a level that ensures their long-term viability: (b) Biological diversity of the aquatic environment should be maintained: (c) Habitat of particular significance for fisheries management should be protected.

Squid Fishery Management Company Ltd v Minister of Fisheries—Judgment 375

[133] According to s 2, “associated or dependent species” in s 9(a) means “any non-­harvested species taken or otherwise affected by the taking of any harvested species.” Therefore, when the Minister is setting the fishingrelated mortality limit, he must take into account the principle that the longterm viability of sea lions should be ensured. Section 9(b) is also directly relevant as New Zealand sea lion is a threatened endemic ­species with a restricted range. The survival of the species (and so the maintenance of global biodiversity) is dependent on the success of the Auckland Islands rookeries. [134] The importance of the principles in ss 9 and 10 (the latter is discussed below) should not be downplayed even though the Act says that they need only be taken into account. In my view, the discretion implicit in s 9 relates less to Parliament’s view of the ­importance of the principles than it does to their breadth and potential scope. Their importance is clearly indicated by their ­location at the beginning of the Act, and their express mandatory relevance to all persons performing any power, function or duty under the Act, including the Minister setting a fishing-related mortality limit. The breadth of the principles in s 9 demands that the Minister has enough room and flexibility to accommodate them all in any given case. [135] Section 10 sets out the final set of general guiding principles for the ­Minister’s decision to set a fishing-related mortality limit: 10  Information principles All persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following information principles: (a) Decisions should be based on the best available information: (b) Decision makers should consider any uncertainty in the information available in any case: (c) Decision makers should be cautious when information is uncertain, unreliable, or inadequate: (d) The absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to achieve the purpose of this Act.

[136] The “best available information” is, according to s 2, that which “in the particular circumstances, is available without unreasonable cost, effort, or time.”

376  Nicola Wheen

[137] While s 10(d) refers to measures to achieve the purpose of the Act, ­Parliament must have intended to focus on the “ensuring sustainability” limb of the Act’s purpose as set out in s 8(1), rather than on the “provide for the utilisation of fisheries resources” limb. This fits with the generally accepted meaning of the precautionary principle. This principle has been developed in international law, and is perhaps most clearly and simply expressed in Principle 15 the United Nations Rio Declaration on Environment and Development (UN Doc. A/CONF.151/26 (vol. I) (1992); 31 ILM 874 (1002)): “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” [138] In practice, more than one of the principles in s 10 might apply in any given case. In this case, as I will explain below, paragraphs (a), (b) and (c) all apply, and it is up to the Minister to find the right balance between them. This is why s 10 requires each of these information principles to be taken into account, but does not say that any one binds d­ ecision makers. This does not make the principles themselves any less important. Fishing-related mortality measures [139] Part 3 of the Act provides for the establishment by the Minister of sustainability measures for fisheries stocks and the aquatic environment. These include measures to avoid, remedy or mitigate the adverse effects of fishing-related mortalitites on protected species under s 15. [140] Section 15(1) will apply in any case where the Minister of Conservation has approved a population management plan to manage the fishingrelated mortalities in question. No such plan currently exists for any protected species. This is suprising since ­fishing-related mortalities are known to affect at least two protected endemic marine mammal species as well as many seabirds, and given that the Minister and Department of Conservation have a responsibility under the Conservation Act 1987, s 6 to preserve and protect these mammals. Instead, the effects of fishing-related mortality on protected species are managed by the Minister under s 15(2) of the Act. [141] Section 15(2) allows for fishing-related mortality measures to be made by the M ­ inister in the absence of a population management plan. The Minister made the decsion that is the subject of this case under this sub-section:

Squid Fishery Management Company Ltd v Minister of Fisheries—Judgment 377

15  Fishing-related mortality of marine mammals or other wildlife … (2) In the absence of a population management plan, the Minister may, after consultation with the Minister of Conservation, take such measures as he or she considers are necessary to avoid, ­remedy, or mitigate the effect of fishing-­related mortality on any protected species, and such measures may include s­ etting a limit on fi ­ shing-related mortality. …

[142] Section 15(2) must be read in the context of ss 8 and 9 of the Act. As applied to these facts, s 8 means that the Minister should bear in mind that his overall purpose should be to provide for (not “promote” or “ensure”) the utilisation of the squid fishery while, as a bottom line, ensuring that any adverse effects of squid fishing on New Zealand sea lions are avoided, remedied or mitigated. Section 9 also puts the emphasis on protecting the sea lions: it requires the Minister to consider the principle that the long-term viability and maintenance of sea lions should be ensured. [143] Section 15(2) authorises the Minister to take such measures as he ­considers to be “necessary to avoid, remedy or mitigate the effect of fishingrelated mortality” on the sea lion species. “Necessary” simply means that the Minister can take the measures he considers are needed to achieve the objective of avoiding, remedying or mitigating the effect of fishing-related mortality on the sea lions. “Necessary” is not intended to limit the Minister’s power to act. It is very important to keep the Minister’s powers intact: they are needed to ensure the fundamental principle, reflected in the phrase “to avoid, remedy, or mitigate” in s 15(2), that in the pursuit of human goals, as little violence as possible should be done to other species. [144] The three words “avoid, remedy, or mitigate”, used in s 15(2) (and also in s 8(2)’s definition of “ensuring sustainability”) to describe the objective of fishing-related mortality measures, must have been deliberately used by the Legislature. Their order is not mere happenstance but indicates a legislative preference for avoiding the effect of fishing-related mortality on the sea lions. Any effect that cannot be avoided, or has already occurred, should be remedied. Thus, for example, if the total population of sea lions has been depleted in the past, it is not sufficient to simply maintain the species’ now smaller population: remedying means putting things back to how they were. This is the thinking behind the Department of Conservation’s strategy of maintaining the Auckland Islands population at or above carrying capacity,

378  Nicola Wheen

in order to encourage the sea lions to establish new rookeries in other sites. Mitigation is logically the last choice, the least preferable option. Any adverse effect that cannot be avoided, has not yet occurred, or is impossible to completely remedy, has to be reduced or mitigated. Thus, the Act’s ultimate goal is that there should be no adverse effect, that ­fishing-related mortalities should be zero. In the USA, this goal is expressed in the Marine Mammals Protection Act of 1972. In my opinion, in New Zealand, the goal of zero mortalities can be read into the Act. [145] The aim of s 15(2) measures is to avoid, remedy or mitigate “the effect of fishing-related mortality on [the] protected species.” Section 2 defines “­fishing-related mortality” as “the accidental death or incidental death of any protected species that occurs in the course of fishing”. The words “in the course of” mean that s 15(2) refers to effects that arise from mortality that happens while fishing activities are carried out, but not necessarily to other effects that fishing may have. For example, it may not be lawful for a Minister taking s 15(2) measures to consider the effect of sea lions starving due to competition with the fishery for limited numbers of squid, since these deaths would have occurred as a result of, but not during the course of, fishing. Nevertheless, the impact of commercial fishing in this fishery on the maintenance of associated and dependent species is relevant under s 9. Also, the Minister must bear in mind that the Act’s purpose requires him to ensure that the adverse effect of squid fishing on the aquatic environment is avoided, remedied, or mitigated. So, when he is taking s 15(2) measures, he should bear in mind that sea lions are part of an aquatic environment, which comprises an ecosystem of interacting aquatic life and its habitat. In this way, the wider effect of the competition for squid becomes relevant to the Minister’s decision. [146] Although the words “in the course of” in the s 2 definition of ­“fishing-related ­mortality” tend to restrict s 15(2), recall that s 2 also defines “effect”, and does so very widely. The breadth of “effect” means that s 15(2) authorises measures to avoid the direct or indirect, past, present or future, or cumulative or potential effect of fishing-related mortality on the sea lions. There is nothing in the Act to limit “effect” to a direct threat to the sustainability of the protected species. The whole and any effect of fishing-related mortality is relevant. This must include a pup starving onshore because its mother has failed to return from a squid fishing trip because she has drowned in a trawl net, the failure of sea lions to establish new rookeries because their population fails to reach capacity due to fishing-related mortality, or the

Squid Fishery Management Company Ltd v Minister of Fisheries—Judgment 379

cumulative effects of fishing-related mortality in other fisheries within the sea lion foraging area. [147] What is more, all of the effects of fishing-related mortality must be considered at the species level. So, the effects of mortalities in the squid fishery on the sea lion species as a whole, and on the Auckland and Campbell Islands populations, and on the individuals and groups of individuals that make up those populations, are all relevant. To suggest that by referring to species, the Legislature intended to exclude populations and individuals is inconsistent with both the ecological approach and the need to recognise the intrinsic value of i­ndividual sea lions. If Parliament intended to exclude populations and ­individuals, it would have said so, given the ordinary meaning of the words in s 15(2). [148] In summary, when making a decision to take fishing-related mortality measures under s 15(2) of the Act, the Minister: —— must bear in mind that the decision should provide for utilisation of the squid fishery while ensuring that the effects (direct, indirect, cumulative, and ­potential) of squid fishing on the sea lion, the sea lion’s habitat, and the interacting ­ecosytem of which the sea lion is a part, are avoided, or remedied, or mitigated (in that order); and —— must take into account that the decision should usually be based on the best available information, but that uncertainties in that information should usually be resolved in favour of ensuring sustainability; and —— may take measures as needed to avoid, remedy, or mitigate the whole effect of fishing-related mortality on the sea lions (at species, population and individual levels.) Setting the fishing-related mortality limit [149] The judgment of Hammond, Young and O’Regan JJ includes full accounts of how the fishing-related mortality limit is calculated, and how the Minister arrived at the limit for the 2003–2004 SQU6T season. I need only emphasise a few points for the purposes of this judgment: —— the 2003–2004 season was the first when the Breen Kim model was available to use, and was used, in reaching the fishing-related mortality limit. From 1992 to 2003, the limit had been set using the Wade, or PBR, model. Neverthless, the parties have agreed that, for the pur-

380  Nicola Wheen

poses of this case, the Breen Kim model produced the best available information in terms of s 10(a) of the Act; —— both of the advice papers developed by the Ministry for the Minister recommended the use of the Breen Kim model and all of the alternative fishing-related mortality limits put forward in the papers were derived using the Breen Kim model. Both of the papers also recognised that higher limits than those recommended to the Minister could satisfy the conservation criteria developed by the Department of Conservation; and —— the fishing-related mortality limit finally recommended to the ­Minister was ­chosen after the Ministry had assessed the impact of the various options on fishing effort. [150] On 23 September 2003, the Minister released his decision to set the ­fishing-related mortality limit for the 2003–2004 season at 62 sea lion ­mortalities, and to adopt a strike rate of 5.3 per cent and a discount rate of 20 per cent for the use of SLEDs. The squid fishers commenced proceedings against the Minister’s decision in the High Court on 15 December 2003. As I noted earlier, France J rejected the squid fishers’ claims and so they appeal to this Court. The issues argued by the squid fishers [151] The squid fishers argue that: 1. The Minister’s exercise of his discretion to impose a fishing-related mortality limit of 62 was: (a) unlawful in that the Minister failed to act in accordance with ss 10(a), 8 and 15(2) of the Fisheries Act; (b) unlawful in that the Minister failed to take into account relevant considerations [the room available to increase the fishing-related mortality limit, given the numbers being generated by the Breen Kim model]; and (c) irrational. 2. The Minister acted on a mistake of fact in setting the fishing-related mortality limit at 62; and 3. The Minister’s reliance on the Wade rule to set the fishing-related ­mortality limit was unlawful.

Squid Fishery Management Company Ltd v Minister of Fisheries—Judgment 381

In addressing these arguments, I consider first whether the Minister acted in accordance with ss 8 and 15(2) of the Act, and whether he failed to take into account relevant considerations. Second, I consider the issues relating to s 10. Like Hammond, Young and O’Regan JJ, I will not consider point 2 on mistake of fact, given the jurisprudential difficulties currently associated with this ground of review, and since resolution of this point is unnecessary to my decision to allow the appeal. Did the Minister act in accordance with ss 8 and 15(2) of the Act? Balancing and “necessary” [152] Counsel for the squid fishers argued that the Minister’s limit of 62 sea lions was not “necessary” to protect the Auckland Islands sea lion population, that a much higher limit could have been set given the results of the newly-devised Breen Kim model, and that the Minister’s limit therefore breached s 8 because it failed to provide sufficiently for the utilisation of the squid fisheries. Counsel emphasised the word “necessary” in s 15(2), importing into it a sense that only those essential measures required to remove the threat posed by fishing-related mortality to the very survivability of the sea lion population are authorised. Counsel then said that the Minister must have either applied the wrong test or failed to take into account the Breen Kim model, and the extent to which it suggested the fishing-related mortality limit could be raised without compromising the management criteria adopted for the sea lions, when he set the limit at 62. [153] On the facts, the Minister clearly considered the Breen Kim model. The Minister had a wealth of information and data from the Breen Kim model before him when he made his decision. In his own notes summarising his reasons for his decision, the Minister expressed understanding of the industry’s frustration that the Breen Kim model had not been “dusted off earlier.” He added: “Now it is in play, and we will no doubt learn to use, trust and perhaps amend it over future years.” The Minister was also clearly alive to the headroom that the Breen Kim model suggested was available to him to increase the fishing-related mortality limit. Both of the Ministry’s advice papers directly addressed the point that the Breen Kim model supported a significantly higher limit than had hitherto been approved for the SQU6T fishery. In my view, the squid fishers’ argument that the Minister failed to consider either the model itself, or the increased limits that the model suggests could be justified, cannot succeed.

382  Nicola Wheen

[154] The squid fishers’ alternative submission, that the Minister applied the wrong test to his decision under s 15(2), is, however, plausible although not for the reasons the squid fishers argue. On the facts, it is clear that the Minister’s approach was to balance utilisation and sustainability factors, and to try to reach a decision that met the agreed conservation criteria, but still allowed for a profitable trawl fishery to operate within the sea lions’ foraging area. [155] Using the Breen Kim model, a series of possible rules that generated fishing-related mortality limits that met the agreed conservation criteria were put before the Minister, who was also given official advice about the various rules that compared their relative impact on the utilisation of the squid resource. Some rules were rejected outright because of their perceived overly restrictive impact on squid utilsation opportunities. In the end, the Minister was advised to choose rule 320, which generated a fishing-related mortality limit of 124. The Minister decided on 62 mortalities to be precautious. However, there is no indication in any of the material supplied to us that the Minister had in mind that his ultimate goal should be zero fishingrelated sea lion mortalities. Equally, there has been no suggestion by the Minister that the squid fishers should be required to jig and not trawl. [156] I have already explained my view that s 8 does not create a balance or trade-off between providing for utilisation and ensuring sustainability, but instead requires that sustainability is ensured (see paragraphs [127] and [128] above). Section 8 is fortified by s 9’s emphasis on the importance of maintaining the long-term viability of sea lions and of aquatic biodiversity generally. The Minister was wrong to see his task as being to achieve the correct compromise between fishing and sea lions, because the Legislature has indicated that there is to be no compromise to the sea lions. [157] But the approach advocated by the squid fishers is even further from the correct approach to ss 15(2) and 8 than the Minister’s balancing approach. As I observed earlier, both s 8 and s 15(2) make avoiding (rather than remedying or mitigating) all of the effect(s) of fishing-related mortality on the sea lions the priority. If applied, the squid ­fishers’ approach to s 15(2) would create a constant pressure, driving the fishing-related mortality limit upwards, to allow as many mortalitites as possible, thereby maximising fishing opportunities. This is in fact the opposite effect to what the

Squid Fishery Management Company Ltd v Minister of Fisheries—Judgment 383

Legislature intended: prioritising avoidance makes it clear that the ultimate goal is zero mortalities, so the pressure under s 15(2) pushes down and not up as the squid fishers have argued. Effects [158] The information available to the Minister in this case was and is wholly concerned with the direct effect of fishing-related sea lion mortality in the SQU6T fishery on the ­Auckland Islands sea lion population. Even data about mortalities in the nearby Campbell Island population were not good enough to be used when the alternative fishing-related mortality limits were calculated using the Breen Kim model. This narrow focus broadens somewhat beyond the Ministry, in the management objectives that were developed for the sea lions by the Department of Conservation. These objectives consider only the Auckland Islands sea lion population, and focus on maintenance of this population at at least 90 per cent of carrying capacity. But the purpose of maintaining the population at this level is to encourage sea lions to expand their range by developing new rookeries nearby, which should benefit the sea lion species as a whole. [159] Under ss 8, 9, and 15(2), the Minister’s perspective is required to be both broader and deeper. As I indicated above, s 8(2) makes the effects of fishing-related sea lion mortality on the aquatic environment—­including the aquatic ecosystem and aquatic life—relevant, s 9 makes the impact of the ­fishing-related mortality on the long-term viability of the sea lion species, and on biological diversity of the aquatic environment, relevant, and s 15(2) refers to the effect of fishing-related mortality on the species, which in my view must include the effect on sea lion populations and individual sea lions. [160] Few, if indeed any, of these broader and deeper effects are mentioned in the material before the Minister, because it appears that there exists very little, if any, scientific ­information about them. This information deficit is resolved for each decision that the Minister has to make by s 10, so it cannot be unlawful for the Minister not to have considered all of these broader and deeper effects. However, it is crucial to observe that the complete absence of information about these effects, which are clearly relevant to the decision under s 15(2), significantly increases the uncertainties facing the Minister in taking fishing-related mortality measures to protect the sea lions.

384  Nicola Wheen

[161] In the result, I find that the Minister’s approach to setting the ­fishing-related mortality limit of 62 sea lion mortalities for the 2003–2004 squid fishing season was not consistent with ss 8 and 15(2) and was therefore unlawful because he applied a balancing approach to his decision, when s 8 requires a “bottom lines” approach. It was not, however, unlawful, or irrational in the sense of being devoid of reason, to fail to consider all the broader effects of the fishing-related mortalities given the scientific uncertainties and the effect of s 10. Did the Minister act in accordance with s 10? [162] In relation to the information principles in s 10 of the Act, counsel for the squid fishers argued that the Minister’s limit of 62 sea lion deaths cannot have been based on the best available information, which the parties agree is the information generated by the Breen Kim model, contrary to the requirements of s 10(a). Instead, the squid fishers allege, the Minister mistakenly or unlawfully relied on the old Wade or PBR model. They say that the Minister’s reliance on the Wade model is implicit in the similarity between the number he settled on for the fishing-related mortality limit in 2003–2004, and the number he had settled on in previous seasons before the Breen Kim model was developed and applied. [163] I have already observed that the Minister took the Breen Kim model into account, and was cognisant of the extent to which it suggested he could increase the fishing-related mortality limit. But was he required to do more than take the new model, which was accepted to be the best information available to him, into account? Does s 10 actually require him to base his decision on this ­information? I think that the answer is “no”, and further that the Minister deliberately chose a fishing-related mortality limit that was produced through the Breen Kim method but which nevertheless approximated the current limit. In my opinion this approach was lawful when the rest of s 10 is considered. [164] A simple reading of s 10 shows that the Minister is not bound to base his decision on the best available information. The section says that the Minister must take into account that decisions should be based on the best available information, as well as taking into account the other information principles in paragraphs (b), (c) and (d). It does not say that he is bound by any of these paragraphs. In fact, it would not make any sense for the Minister to be so bound, given that in practice these principles may pull

Squid Fishery Management Company Ltd v Minister of Fisheries—Judgment 385

in different directions, as in fact they do here. The most important part of s 10 is paragraph (d), because this allows for decisions to be made to protect the environment even where information is uncertain. Turning paragraph (a) into a requirement on the Minister to always base decisions on the best available information, at the expense of (d), would defeat the raison d'être of paragraph (d). [165] In the result, the Minister was in my view entitled to decide on a fishing-related mortality limit similar to that applied in previous years, whether that limit had been generated using the best available information (the Breen Kim model) or not. He was so entitled because ss 10(c) and (d) oblige him to consider the need to be cautious and adopt measures to protect the environment when faced with scientific uncertainty. The Minister’s entitlement arises because of the extensive uncertainties inherent in the information available to him. [166] There can be no doubt that the Minister was faced with a complex decision. Much of the information behind the fishing-related mortality limit is uncertain. There is uncertainty about the life cycle of arrow squid, about how to estimate sea lion catch (with the result that the fishing limit has been “overshot” in seven out of the twelve seasons in which one has applied, whereby estimated sea lion mortalities have been allowed to exceed the set limit before the fishery was closed), and about the efficacy of SLEDs and the application and level of the discount to be applied for their deployment. There is even uncertainty about what must be the most essential piece of information in this decision: the size of the sea lion population. There is no information about the cumulative effect of sea lion mortality in other fisheries, or about the other relevant but indirect effects of fishing on the sea lions. [167] But most importantly, it was reasonable for the Minister to conclude that there was uncertainty about the Breen Kim model and the results it was producing, even though it is the best available information. During the process of developing advice for the Minister on the 2003–2004 fishing-related mortality limit, the Ministry received a review of the model by Dr Goodman, the Director of Environmental Statistics at Montana State University, who expressed some caution about the methods used in the modelling and the level of data being used under it to calculate a sea lion mortality limit. Dr Goodman’s report was referred to the Minister, and he had it (as well as the IPP and the FAP) before him when he met with officials just before making his decision. Both the IPP and the

386  Nicola Wheen

FAP said that the Breen Kim model suggested significantly (in some instances wildly) higher fishing-related mortality limits than had been set using the Wade rule, which was developed in the USA for application to all marine mammals and has been used for some time to set fishing-related mortality levels under the US Marine Mammals Protection Act of 1972. In fact, under the Breen Kim model, which was new and had not yet been fully peerreviewed in its final form, even “unconstrained” fishing only “marginally” failed to meet one of the agreed conservation cirteria. [168] Given the consequences of a possible failure in the measures adopted to protect New Zealand sea lions (an increased threat to the survival of an endemic species), uncertainties should result in a cautious approach that ensures that any past, present, cumulative or potential effects of ­fishing on the sea lion species in particular—but also on the sea lions’ habitat, and on the ­ecosystem of which they are a part—are avoided or, otherwise, ­remedied or mitigated. Thus the Minister had explained, in reasons given to the squid ­fishers in a letter dated 4 December 2003 following the publication of his decision, that although the Breen Kim model suggested that a higher m ­ ortality limit may not pose a threat to the sea lion population, caution was required given the G ­ oodman review and that he had adopted a ­“precautionary approach.” The Minister’s uncertainties may ­legitimately have been compounded, and not alleviated when the squid fisheries ­subsequently commissioned Dr Breen to use the Breen Kim model to identify the highest fishing-related mortality limit that would meet the agreed conservation criteria for sea lions. The so-called “cusp rule” identifed by Dr Breen produced a fishing-related mortality limit of 571 sea lions, a ­massive 923 per cent times the limit decided on by the Minister, and between five and six times the number of sea lion mortalities that the model ­calculated would be obtained by completely unconstrained fishing. [169] I note in passing that the industry has apparently contributed to the persistence of at least some of these uncertainties (for example, by failing to report sea lion mortalities fully, and by disrupting research on SLEDs by refusing to close their covers during the 2002–2003 season so that all sea lions entering their nets were drowned and could be autopsied to assess the likely physical condition of sea lions that escape nets through SLEDs), and has also acted decisively to secure its profits despite these uncertainties (a discount for SLEDs has been insisted on by the industry despite uncertainties surrounding the efficacy of the device, with the industry demanding

Squid Fishery Management Company Ltd v Minister of Fisheries—Judgment 387

both the continued benefit of the discount, and that the sea lions drowned for research should not count towards the fishing-related ­mortality limit (Squid Fishery Management Co Ltd v Minister of Fisheries (CP 20/03, High Court, Wellington Registry, 11 April 2003)). [170] For these reasons I find that the Minister’s approach to setting the ­fishing-related mortality limit of 62 sea lion mortalities for the 2003–2004 squid fishing season accorded with s 10. The Minister was well aware of the Breen Kim results, but deliberately chose the cautious approach of sticking with the status quo for one more season. In the circumstances, this approach was warranted as well as being consistent with the Act. Conclusion [171] I would answer the specific grounds upon which the Operational Plan was c­ hallenged as follows: 1. The Minister’s exercise of his discretion to impose a fishing-related mortality limit of 62 was: (a) not unlawful because the Minister did not fail to act in accordance with s 10(a), but was unlawful because the Minister failed to act in accordance with ss 8 and 15(2) of the Act; (b) not unlawful in that the Minister did not fail to take into account the room available to increase the fishing-related mortality limit, given the numbers being generated by the Breen Kim model; and (c) not irrational. 2. It is unnecessary to decide whether the Minister acted on a mistake of fact in setting the fishing-related mortality limit. 3. The Minister did not solely rely on the Wade rule to set the fishingrelated­mortality limit, but his resort to the result achieved by the Wade rule in making his decision was not unlawful or unreasonable. [172] I would therefore allow the appeal, and refer the decision back to the Minister to reconsider, applying the overall goal under s 15(2) of avoiding the effect of fishing-related mortality on New Zealand sea lions.

388 

21 Commentary on West Coast ENT Inc v Buller Coal Ltd Broadening an Ethic of Care to Recognise Responsibility for Climate Change CATHERINE IORNS

Introduction West Coast ENT Inc v Buller Coal Ltd concerned the law to be applied when deciding a number of resource consent applications to mine coal on the Denniston Plateau on the West Coast of the South Island.1 The environmental NGOs West Coast ENT2 and the Royal Forest and Bird Protection Society sought a declaration that those deciding the resource consent applications were required to consider the contribution that the mined coal would eventually make to climate change. This application was denied by Newhook J in the Environment Court, who instead made the declarations applied for by Buller Coal and Solid Energy that decision-makers did not need to consider such climate considerations. ENT’s appeal was denied by Whata J in the High Court and by a majority of the Supreme Court. (The case bypassed the Court of Appeal due to its significance.) All three decisions have been criticised by previous commentators, primarily for ignoring or misapplying accepted rules of statutory interpretation.3 In line with van Wagner J’s feminist judgment, this commentary identifies broader criticisms of the decisions from an environmental perspective.

Background In 2011 the West Coast Regional Council and the Buller District Council granted land use consents to Bathurst-owned Buller Coal4 to develop its Escarpment Mine, an open-cast coal 1 

West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32. Previously West Coast Environment Network. 3  See below at ‘The Decisions in West Coast Coal ENT ’. 4  Buller Coal Ltd is a subsidiary of the Australian company Bathurst Resources Ltd. 2 

390  Catherine Iorns mine on the Denniston Plateau.5 Solid Energy also planned to develop its Mount William North mine on the Plateau. Together they planned to produce approximately 10 million tonnes of coal over 12 years, to be exported to developing countries—primarily India and China—for use in steel making. This use would produce approximately 28 megatonnes of CO2 emissions. The parties agreed that the Court could assume for these proceedings that:6 (a) Climate change is a serious global issue. (b) The coal mined at the sites will probably result in the subsequent discharge of carbon dioxide from the combustion of that coal. (c) Carbon dioxide is a known greenhouse gas. The Denniston Plateau itself is ‘a remote and largely unmodified part of the West Coast’,7 containing a unique ecosystem not found anywhere else in the world, let alone elsewhere in New Zealand. Some nationally critical and endangered species live on the plateau, and would have to be relocated if they were to be saved. In addition, ‘biodiversity offsets’ would be undertaken, whereby the mining companies would pay for conservation elsewhere, in return for lost Plateau biodiversity. Many New Zealanders were upset at the proposals, both in terms of the likely effect on biodiversity8 and the contribution of the mines to climate change, and were looking for legal avenues to challenge the developments.

Climate Change The burning of coal is one of the largest contributors to greenhouse gas emissions globally; at the time of the mine development proposals, that contribution stood at 43% of global fuel-based CO2 emissions.9 At that time, the International Energy Agency (IEA) had noted that the world had already used up or ‘locked in’ 80% of all the energy-related CO2 emissions that were permissible by 2035, on the basis of having a reasonable chance of limiting global warming to no more than 2C.10 The IEA thus argued that coal consumption needed to peak well before 2020 and then decline.11 Bill McKibben in a now-famous Rolling Stone article spelled out that this ‘terrifying new math’ of climate change meant that it was only safe to burn one fifth of the already-identified fossil fuel reserves.12 The rest had to be left in the ground, plus no new reserves could be exploited. This information was becoming prominent in 2012 and 2013, during the legal challenge, along with protests against the financing of new and existing fossil fuel extraction.13 5  Re an Application by Buller Coal Ltd for Resource Consents for the Denniston Plateau Escarpment Mine Project Decision of Commissioners appointed by West Coast Regional Council and Buller District Council, 26 August 2011 [523]. 6  West Coast ENT (n 1) [14] (Elias CJ). 7  ibid [6] (Elias CJ). 8  See, eg, ‘DOC Accidentally Kills 800 Rare Snails’ Otago Daily Times (Dunedin, 10 Nov 2011) www.odt.co.nz/ news/national/doc-accidentally-kills-800-rare-snails. 9  International Energy Agency, Key World Energy Statistics 2011 (Paris, IEA, 2011) 44. 10  International Energy Agency, World Energy Outlook 2011 (Paris, IEA, 2011) www.iea.org. 11  ibid 5. 12  B McKibben, ‘Global Warming’s Terrifying New Math’ Rolling Stone Magazine (New York, 19 July 2012) www.rollingstone.com. 13  eg, 350 Aotearoa organised protests and campaigned against Westpac Bank for financing the Buller Coal project.

West Coast ENT Inc v Buller Coal Ltd—Commentary 391 The UN Framework Convention on Climate Change was adopted in 1992 with the aim of stabilising greenhouse gases ‘at a level that would prevent dangerous anthropogenic interference with the climate system’.14 The 1997 Kyoto Protocol required developed country parties to limit their CO2 emissions; New Zealand’s target was to return its net emissions to 1990 levels during the period 2008–2012, while reducing gross emissions by 20%. In pursuit of this target, the government passed the Climate Change Response Act 2002 (NZ), and ratified the Kyoto Protocol in December 2002. During the development of this legislation, the then government was a coalition of Labour and Alliance, with unofficial support from the Greens, and there was a stated commitment to adopting effective measures to address climate change and meet New Zealand’s international obligations.15 By the time of the proceedings, however, the government had changed and it had become clear that New Zealand’s greenhouse gas emissions were increasing.16 Moreover, deforestation was also escalating, increasing net emissions even further.17 In order to ‘balance our books’ and meet Kyoto Protocol targets, New Zealand companies were purchasing emissions credits from overseas,18 while continuing to export emissions to other countries, such as through the export of coal. New Zealand then withdrew from the Kyoto Protocol commitment period beyond 2012, refusing to be legally bound to further reductions,19 while encouraging fossil fuel exploration and development for the sake of the financial benefits that would accrue to the country.20 These things had all happened before the Supreme Court decision.

The Resource Management Act and its 2004 Amendment The Resource Management Act 1991 (RMA) is the primary statute governing land and water use in New Zealand. Its overarching purpose is to ‘promote the sustainable management of natural and physical resources’. Part 2 of the Act provides guidance for all decisionmakers under the Act, including the need to ‘recognise and provide for’ matters of national significance, ‘have particular regard to’ specified other matters, and ‘take into account’ the

14  UN Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107; New Zealand ratified the Convention in 1993. 15  See, eg, V Rive ‘New Zealand Climate Change Regulation’ in A Cameron (ed), Climate Change Law and Policy in New Zealand (Wellington, LexisNexis, 2011) 165. 16 See, eg, ‘Trends in Greenhouse Gas Emissions’, Ch 2 in Ministry for the Environment, New Zealand’s Greenhouse Gas Inventory 1990–2008 (Wellington, Ministry for the Environment, 2010) 18–27; ‘Trends in Greenhouse Gas Emissions’, Ch 2 in Ministry for the Environment, New Zealand’s Greenhouse Gas Inventory 1990–2013 (Wellington, Ministry for the Environment, April 2015) 32–42. 17  Ministry for the Environment, New Zealand’s Greenhouse Gas Inventory 1990–2008 (n 16) vii-x. See also, Ministry for the Environment, New Zealand’s Greenhouse Gas Inventory 1990–2008: Environmental Snapshot April 2010 (Wellington, Ministry for the Environment, 2010) www.mfe.govt.nz. See also later reports (n 16). 18  While it was not proven at the time, it was also suspected that some of the emissions credits purchased were not true reductions in their country of origin. That has since surfaced as a scandal of ‘dodgy’ Eastern European credits. See, eg, G Simmons and P Young, Climate Cheats and Climate Cheats II: The Dozen Dirty Businesses (Wellington, The Morgan Foundation, 2016) morganfoundation.org.nz. 19 See, eg, Ministry for the Environment, ‘New Zealand and the United Nations Framework Convention on Climate Change’ (Wellington, Ministry for the Environment, 17 August 2016) www.mfe.govt.nz/climate-change/ international-forums-and-agreements/united-nations-framework-convention-climate. 20  See, eg, P Heatley ‘2012 Proposed Block Offer Released’, (Wellington, Minister for Energy and Resources, 9 February 2012) www.beehive.govt.nz/release/2012-proposed-block-offer-released.

392  Catherine Iorns principles of the Treaty of Waitangi. Part 2 has been described as the ‘engine-room’ of the Act,21 with the purpose being ‘cardinal and pivotal’22 in the interpretation and implementation of the Act.23 There have been few amendments to Pt 2 since 1991. However, as part of the measures designed to meet New Zealand’s obligations under the Kyoto Protocol, the Resource Management (Energy and Climate Change) Amendment Act 2004 (NZ) (‘2004 Amendment’) inserted specific provisions concerning climate change. These required decision makers to have particular regard to ‘the efficiency of the end use of energy’,24 ‘the effects of climate change’,25 and ‘the benefits to be derived from the use and development of renewable energy’.26 Because the government was still considering the mechanisms to be adopted for achieving the reductions of greenhouse gas emissions (eg, whether a carbon tax or emissions trading system) there was also concern that New Zealand emitters should not be subject to local or regional regulation under the RMA in addition to any new, separate national mechanism. Therefore the 2004 Amendment also had the purpose ‘to remove climate change as a consideration when considering industrial discharges of greenhouse gas emissions, as these emissions are best addressed using a national mechanism’.27 It was identified in the Explanatory Note to the Bill that this was specifically limited to ‘industrial discharges’ and that ‘[t]he ability to control land uses for climate change purposes remains unchanged’.28 This intended restriction of the scope of the Amendment Act to industrial discharges was reiterated and reinforced during the passage of the Bill. While the reference to excising emissions from ‘industrial and trade premises’ was removed at Select Committee, it was in the context of the aim of removing the ‘duplication of controls’ over emissions, and it was made clear that only where emitters would be subject to (then future) national regulation would the ability of regional councils to control these emissions be removed.29 Unfortunately, the deletion of the reference to ‘industrial and trade premises’ meant that, on its face, the removal of councils’ ability ‘to have regard to the effects of a discharge on climate change’ appears broad, applying to discharges from any activity. It is this apparent breadth which was the subject of the interpretation issues in the West Coast ENT case, with the coal mining companies arguing that the contribution of mining to climate change could not be considered. The issue of interpretation of the 2004 provisions arose very soon after passage of the Amendment Act. In 2005 in Genesis Power Ltd v Franklin District Council, the Environment Court confirmed that consent authorities must have particular regard to the effects of climate change and the benefits to be derived from the development of renewable energy

21 

Auckland City Council v John Woolley Trust [2008] NZRMA 260, (2008) 14 ELRNZ 106 (HC) [47]. Genesis Power Ltd v Franklin District Council [2005] NZRMA 541 (EnvtC) [213] (Whiting J). Auckland City Council v John Woolley Trust [2008] NZRMA 260, (2005) 12 ELRNZ 71 (HC) [47]. 24  RMA, s 7(ba). 25  RMA, s 7(i). 26  RMA, s 7(j). 27  Resource Management (Energy and Climate Change) Amendment Bill 2003 (Explanatory Note) 1. 28  ibid 5. 29  Parliamentary Debates 615 NZPD 11040 (17 February 2003) per Judith Tizard. See also, N Ross, ‘Climate Change and the RMA: A Critique of West Coast ENT Inc v Buller Coal Ltd’ (2015) 46 Victoria University of Wellington Law Review 1111, 1129. 22  23 

West Coast ENT Inc v Buller Coal Ltd—Commentary 393 when considering an application for a renewable energy project.30 In two subsequent cases Greenpeace argued that the requirement to have regard to the effects of climate change and the benefits of renewable energy also applied to applications relating to fossil fuel power generation.31 The High Court found in favour of Greenpeace,32 as did the Chief Justice in dissent in the Supreme Court.33 However, the Court of Appeal and the majority of the Supreme Court found that these matters could not be considered in such a situation. While the future national measures to account for greenhouse gas emissions had not even been agreed on at that stage, these courts considered that having regard to the effects of climate change would amount to ‘double-counting’ the emissions at both regional and national levels, which was contrary to the intent of the 2004 Amendment.34 In dissent, the Chief Justice determined that this interpretation was contrary to the face of the section in question, contrary to other provisions in the RMA, and contrary to the legislative history of the Amendment Act.35

The Decisions in West Coast ENT The West Coast ENT case arose only five years after the Greenpeace case, but the background legal and factual situations had changed. For example, the fact that the world’s climate had already noticeably changed was publicly discussed, as New Zealand and the rest of the world had been subject to more extreme weather events. The Intergovernmental Panel on Climate Change issued an updated report in 2007, stressing the need to transition to a future free of fossil fuels,36 and even business-oriented bodies such as the World Bank and the IEA were warning of dire consequences of following a ‘business as usual’ approach in terms of the burning of fossil fuels.37 Yet these contextual factors were not mentioned in the decisions. Newhook J in the Environment Court found against the NGOs and in favour of the mining parties. He considered that the case ‘was one largely of statutory interpretation’38 yet also that there was no ‘ambiguity, uncertainty, or room for discretion or “choice” in the interpretation of the words and policy of the provisions of the Act’.39 Newhook J focused on

30  Genesis Power Ltd v Franklin District Council [2005] NZRMA 541, (2005) 12 ELRNZ 71 (EnvC) (Whiting J). The Court granted the consent, with these factors ostensibly weighing heavily in its favour, as it was despite adverse effects on the coastal environment. 31  The first was Greenpeace New Zealand Inc v Northland Regional Council (EnvC Auckland A094/06, 11 July 2006). Greenpeace appealed the consent for Mighty River Power’s Marsden ‘B’ coal-fired power station. The second was Genesis Power Ltd v Greenpeace New Zealand Inc [2007] NZCA 569, [2008] 1 NZLR 803. This case concerned a Genesis Power proposal to build an electricity generating plant fuelled by gas. 32  Greenpeace New Zealand Inc v Northland Regional Council [2007] NZRMA 87, (2006) 12 ELRNZ 377 (HC). 33  Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112, [2009] 1 NZLR 730. 34  ibid [37], citing para 40 of the Court of Appeal decision. 35  ibid [11], [40]. 36  Intergovernmental Panel on Climate Change, Fourth Assessment Report: Climate Change (Geneva, IPCC, 2007) ipcc.ch. 37  See, eg, International Energy Agency, World Energy Statistics (n 9) and World Energy Outlook (n 10). 38  Judge L Newhook, ‘Climate Change and the RMA’ (RMLA conference, 2009) www.rmla.org.nz/wp-content/ uploads/2016/09/rmla08_judgelaurienewhook_climatechangeandtherma.pdf. 39  Re Buller Coal [2012] NZENVC 80 [38].

394  Catherine Iorns the purpose of the 2004 amendments to avoid double regulation and on the interpretation taken by the Supreme Court decision in the Greenpeace case. He refused to consider many of the arguments made by the parties—such as to choose an interpretation consistent with New Zealand’s international law obligations.40 This approach has been criticised for ‘the short shrift given to arguments by counsel (including Sir Geoffrey Palmer for West Coast ENT) for the environmental groups’.41 As Vernon Rive has commented, ‘[t]here seemed to be an argument at least to be had’ and thus consideration should have been given to the applicants’ arguments.42 In the High Court, Whata J similarly refused to consider all of the environmental groups’ arguments and upheld the Environment Court’s decision. This decision has also been criticised, particularly for inconsistencies and for taking a narrow, literal interpretation of the words instead of a wider purposive interpretation.43 For example, Whata J rejected the use of parliamentary materials as contradictory and ambiguous but then later relied on the ‘unambiguous’ purpose of the 2004 amendments. He similarly focused on the purpose of the 2004 Amendment Act to the exclusion of that of the RMA. Whata J considered that the cumulative effects of climate change are not the type of effects that can be considered under the RMA, nor are the effects of overseas discharges from burning of the mined coal, both because these effects are overseas and because the burning is not the activity for which the consent is being applied. While he acknowledged that climate change and its effects would clearly impact on the exercise of functions under the RMA, and the coal miners would not be subject to national regulation of the resultant emissions—ie not subject to double regulation—his view of the exercise of statutory interpretation made those considerations irrelevant. In upholding the High Court’s decision, the majority of the Supreme Court similarly considered that their interpretation of the 2004 provisions was obvious and avoided absurdity. That interpretation is subject to the same criticisms. The majority did consider New Zealand’s international obligations, but noted that the commitment under the Kyoto Protocol to reduce greenhouse gas emissions to 1900 levels would be met. The fact that it would be met by the purchase of credits rather than through actual reductions was not seen as a problem. The Court also noted that New Zealand had declined to continue to be bound by the Kyoto Protocol and was thus only bound by a voluntary pledge.44 The majority further commented that restricting New Zealand’s coal output would not make any appreciable difference to the worldwide use of coal. While this approach is not technically contrary to our international obligations, as they focus on CO2 emitted within New Zealand, it does undermine the international effort to move from a fossil-fuel driven economy to one based on renewable energy. It reinforces the irony of agreeing that we need to do something about climate change while not only maintaining the status quo but also profiting from not doing anything to address it. 40  It is an accepted presumption of statutory interpretation that statutes are consistent with New Zealand’s international obligations. See, eg, Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA); Re an Unborn Child [2003] 1 NZLR 115 (HC). 41  V Rive, ‘Coal Mines, Climate Change and Test Cases: Initial Thoughts on Buller Coal’ (2012) 9 Butterworths Resource Management Bulletin 129, 130. 42 ibid. 43  See, eg, S Schofield, ‘High Court Decision in Buller Coal’ [2012] NZHC 2146. 44  West Coast ENT (n 1), [100].

West Coast ENT Inc v Buller Coal Ltd—Commentary 395

The Feminist Judgment Van Wagner J adopts the approach to statutory interpretation of the Chief Justice in her dissent and helpfully identifies the key omission of the Supreme Court majority and of the decisions in the lower courts: the failure to consider the 2004 amendments in light of the purpose of the RMA. The approach of these courts to the task of interpretation was surprising, given the purposive approach to interpretation45 and the acceptance by New Zealand courts of the use of parliamentary history materials in helping determine the purpose of legislation,46 as well as the already acknowledged overriding importance of the purpose of the RMA to its interpretation. She points out that amendment legislation cannot be presumed to qualify the purpose of the main statute by implication, especially in the face of evidence to the contrary. Van Wagner J additionally considers a wider range of climate effects in her decision. The Supreme Court majority as well as the lower courts read down the ambit of the effects that the court could consider in such applications, ignoring any wider consideration of those who will be harmed by climate change. For example, the brunt of climate effects will be borne by the poor of the world,47 and particularly women and children in the developing world.48 This is despite them not having historically contributed to the cause of climate change, nor being involved in its solutions. Despite one of the arguments in this case being over the meaning of the ‘effects’ of the development, that this could not include such effects of climate change illustrates how the framing of the issues was too narrow to do justice either to people or to the natural world. Indeed, the framing that assumes people are separate and apart from the natural world is one of the key shortcomings of decision-making under the Act. Some effects that no other decision-maker in this case felt able to consider was the effects of the mining proposal on the relationship of Māori with their ancestral lands, waters and other sites, on kaitiakitanga,49 or on the principles of the Treaty of Waitangi, as specified in ss 6–8 of the RMA. Climate change will affect all of these matters, such as via sea level rise affecting coastal lands, wāhi tapu (sacred sites), and the exercise of Māori foreshore and seabed rights.50 Ocean acidification will affect the existence of kai moana (seafood) and the ability to exercise kaitiakitanga over it. The Court decisions in this case have made it much harder to consider these effects of climate change in other deserving cases. Van Wagner J rightly identifies that ss 6–8 require consideration of these effects by decision-makers. She goes one step further and notes that the ethic of stewardship referred to in s 7(aa) requires 45 

As required by Interpretation Act 1999 (NZ), s 6. Iorns Magallanes, ‘The “Just Do It” Approach to Using Parliamentary History Materials in Statutory Interpretation’ (2009) 15 Canterbury Law Review 205–36. 47  See, eg, the Intergovernmental Panel on Climate Change, Climate Change 2014: Synthesis Report: Summary for Policymakers (Geneva, IPCC, 2014) 31, www.ipcc.ch/report/ar5/syr. 48 See, eg, the UN website on Women, Gender Equality and Climate Change: www.un.org/womenwatch/ feature/climate_change (summarising the relevant information, with links to UN and other documents). 49  This is most relevantly translated as the Māori concept of stewardship or guardianship. 50  See, eg, DN King, G Penny and C Severne, ‘The Climate Change Matrix Facing Maori Society’ in R Nottage et al (eds), Climate Change Adaptation in New Zealand: Future Scenarios and Some Sectoral Perspectives (Wellington, New Zealand Climate Change Centre, 2010) 100; L Kanawa, ‘Climate Implications for Māori’ in R Selby, P Moore and M Mulholland, Māori and the Environment: Kaitiaki (Wellington, Huia Publishers, 2016) 109. 46  C

396  Catherine Iorns that ‘a broader set of relationships and responsibilities between people and the environment inform the decisions made under the RMA, including resource consent decisions’. Van Wagner J’s judgment illustrates well the contribution that feminist theory can make to environmental law. She adopts a strong ethic of care in her analysis, deciding that it is incorporated in Part 2 of the RMA, particularly in ss 7(a) and 7(aa). A feminist ethic of care emphasises the importance of our location within webs of relationships, rather than seeing the world through the lens of competition between atomistic individuals.51 This includes care for people both now and in the future, requiring a much clearer and better justification for the climate damage that will be inflicted by the mining proposals than that given by the various courts in this case. Van Wagner J’s focus on inter-generational and intragenerational equity illustrates one aspect of the application of such a feminist analysis. As well as connecting humans with each other, this web of relationships connects humans with the natural world. A second aspect of Van Wagner’s ethic of care is her grounding of the decision in the specific place under consideration. She demonstrates how feminist thinking about materiality and relationality can shift legal analysis away from narrow and abstract legal principles to ground decisions in the material world.52 This specificity of place and space provides for greater attention to our relationships with the natural world. It also ‘takes seriously the agency of the natural’ to reveal the things, beings, and processes of the material world as co-creators of our worlds rather than simply as resources for human use.53 Australian ecofeminist philosopher and activist Val Plumwood challenged us to ‘re-imagine the world in richer terms that will allow us to find ourselves in dialogue with and limited by other species’ needs, other kinds of minds’.54 Van Wagner J’s judgment takes up this challenge by emphasising such connection and thus responsibility as foundational principles in the RMA through an embodied ethic of care. A fundamental aspect of Van Wagner J’s ethic of care is the respect for Māori understandings of a web of relationships between humans and the natural world that includes spiritual and ancestral links, and attendant responsibility. She does this through her inclusion of consideration of the effects of the mining proposal on Māori even when this was not argued before the Court. As well as culturally locating the ethic of care to be adopted in the RMA, it suggests that a culturally relevant ethic of care for people and the environment would place responsibility on decision-makers to proactively seek and therefore require such information be addressed by applicants. All of these aspects of feminist analysis locate people within their broader relationships that are often left out of cases. There are other environmental movements that adopt a

51 Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, Mass, Harvard University Press, 1982). 52  See, eg, J Nedelsky, ‘Reconceiving Autonomy: Sources, Thoughts and Possibilities’ (1989) 1 Yale Journal of Law and Feminism 7; J Nedelsky, ‘Reconceiving Rights as Relationship’ (1993) 1 Review of Constitutional Studies 1; J Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy and Law (New York, Oxford University Press, 2011); M Minow, Making all the Difference: Inclusion, Exclusion, and American Law (Ithaca, Cornell University Press, 1990); M Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law & Feminism 1. 53 N Tuana, ‘Viscous Porosity, Witnessing Katrina’ in S Alaimo and S Hekman (eds), Material Feminisms (Bloomington, Indiana UP, 2008) 188; S Alaimo, ‘Transcorporeal Feminisms and the Ethical Space of Nature’ in Material Feminisms (Bloomington, Indiana UP, 2008) 237. 54  V Plumwood, ‘Nature in the Active Voice’ in R Irwin (ed), Climate Change and Philosophy: Transformational Possibilities (London, Continuum, 2010) 32.

West Coast ENT Inc v Buller Coal Ltd—Commentary 397 relational approach, involving ethics of care, such as Earth Law or Earth jurisprudence,55 as well as indigenous movements, both of which emphasise the spiritual as well as physical connections between people and the natural world, and the responsibility we have toward it. Van Wagner J illustrates how a feminist legal approach can be developed that draws on the critical analysis from these different movements and assists a transition toward more bottom-up, respectful and more deeply connected legal, social and economic systems.

Conclusion As a result of the Supreme Court decision, the Environment Court granted consents for the mine.56 However, due to a plunge in world coal prices in 2013 and 2014, the Denniston coal project was rendered uneconomic and was postponed.57 After a brief start to mining operations in 2014, it was suspended in March 2016 and laid off most of its staff.58 If the demand for coal stays low the project may never resume. But while the law was overtaken by a changing context in this case, the protection of local places, of the biodiversity and ecosystems within them, and of the relationships between people and these places, should not depend on unrelated arguments about statutory interpretation that are indifferent to what is at stake. A critical feminist approach argues for a radical transformation to end the abuse of the natural world for profit, as well as to end the domination of the world’s natural ‘resources’ by a minority of individuals, peoples and states, by reference to the principles of global and temporal justice. It is a challenge to capitalism and racism as well as to patriarchy. The inability to challenge in law any of these aspects of the Buller Coal project shows us how far we have to go before we can implement a critical feminist approach to addressing climate change. Van Wagner J’s and the Chief Justice’s dissents are helpful illustrative steps along this way.59

55  See, eg, C Iorns Magallanes, ‘New Thinking on Sustainability’ (2015) New Zealand Journal of Public and International Law 1. See also N Rogers and M Maloney (eds), Law as if Earth Really Mattered: The Wild Law Judgement Project (Routledge, forthcoming). 56  Forest & Bird negotiated an agreement with Bathurst Resources to create a reserve on the Plateau in return for Forest & Bird not appealing the consent. See, eg,: ‘Reserve to be Created on Denniston Plateau’ Otago Daily Times (Dunedin, 12 November 2013) www.odt.co.nz/news/national/reserve-be-created-denniston-plateau. Note that this is in addition to the other conditions made as part of the consents, including $22 million spread over 7 years for the Department of Conservation and a bond lodged with the District and Regional Council for restoration of the site. See eg,: ‘Global Prices Restrict Bathurst’s Denniston Plans’ Otago Daily Times (Dunedin, 21 June 2014) www.odt.co.nz/business/global-prices-restrict-bathursts-denniston-plans. 57  See, eg, ‘Bathurst Seeks More Cash’, Otago Daily Times (Dunedin, 31 May 2014) www.odt.co.nz/business/ bathurst-seeks-more-cash, noting the 9-year low in the share price at the time; ‘Demand for Bathurst’s Coal Strong, Otago Daily Times (Dunedin, 2 August 2014) www.odt.co.nz/business/demand-bathursts-coal-strong; ibid ‘Global Prices Restrict Bathurst’s Denniston Plans’. 58  See, eg, ‘Global Prices Restrict Bathurst’s Denniston Plans’ (n 56); “Bathurst Suspends Mining Operations At Denniston, Otago Daily Times (Dunedin, 15 March 2016) www.odt.co.nz/business/bathurst-suspends-miningoperations-denniston; ‘Twenty Bathurst Jobs to go in Buller’ Otago Daily Times (Dunedin, 22 March 2016) www. odt.co.nz/business/twenty-bathurst-jobs-go-buller. 59  For an example from Australian law see L Godden’s judgment in H Douglas, F Bartlett and T Luker (eds), Australian Feminist Judgments: Righting and Rewriting Law (Oxford, Hart Publishing, 2014) 138. See also, J Peel, ‘Addressing Climate Change Inequities: The Contribution of a Feminist Judgment’ in Australian Feminist ­Judgments, ibid 133.

IN THE SUPREME COURT OF NEW ZEALAND

SC75/2012 [2013] NZSC 87

BETWEEN

WEST COAST ENT INCORPORATED Appellant

AND

BULLER COAL LIMITED First Respondent SOLID ENERGY NEW ZEALAND LIMITED Second Respondent ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED Third Respondent

AND

WEST COAST REGIONAL COUNCIL AND BULLER DISTRICT COUNCIL Interveners

Hearing:

12 and 13 March 2013

Court:

Elias CJ, McGrath, William Young, Chambers*, Glazebrook and Van Wagner JJ

Counsel:

D M Salmon and D E J Currie for Appellant J E Hodder QC and B G Williams for First Respondent A C Limmer for Second Respondent P D Anderson for Third Respondent J M van der Wal for Interveners

Judgment:

19 September 2013

* Chambers J died before this judgment was delivered. The remaining Judges have decided under s 30(1) of the Supreme Court Act 2003 to continue the p­ roceeding to judgment.

West Coast ENT Inc v Buller Coal Ltd—Judgment 399

JUDGMENT OF THE COURT A B

The appeal is dismissed. Costs are reserved. If sought, memoranda may be filed within 10 working days of the date of this judgment. REASONS Elias CJ McGrath, William Young and Glazebrook JJ Van Wagner J

[1] [95] [179]

VAN WAGNER J Introduction [179] The judgments of the Chief Justice and the majority have adequately laid out the background to the decision we have been asked to make. The ­Environment Court granted the respondents’ application for a declaration that the end use of the coal mined for export and off-shore use was irrelevant to the land use and other associated consents required under the Resource Management Act 1993 (the “Act”) for the open-cast Escarpment and Mt William North Mines.172 The declaration was appealed but upheld by the High Court.173 Further, the E ­ nvironment Court declined to grant the declaration applied for by the a­ ppellant that a decision maker considering resource consents for mining must, under s 104(1) of the Act, consider the contribution that the subsequent ­discharges into air from combustion of coal will have towards climate change and must, under s 7(i), have particular regard to the contribution the subsequent d­ ischarges will have towards climate change.

172 Re Buller Coal Ltd [2012] NZEnvC 80, [2012] NZRMA 401 at [4]. 173 Royal Forest and Bird Protection Society of New Zealand Inc v Buller Coal Ltd [2012] NZHC 2156, [2012] NZRMA 552.

400  Estair van Wagner

[180] I concur with the Chief Justice in result and would allow the appeal and set aside the declarations made. I would go further and make the declaration that a decision maker considering applications for resource consents associated with mining of fuels for export must consider the contribution that the subsequent discharges into air from combustion of the extracted fuels will have towards climate change, for the reasons outlined below. I would decline to grant a further declaration that a decision maker must, under s 7(i), have particular regard to the contribution the subsequent discharges will have towards climate change, as this would require further submissions from the parties on the meaning of s 7(i) and the implications of such a declaration. Context Coal and climate change [181] The effect of burning coal on climate change was not contested in the proceedings before us. It is also accepted that the goal of the proposed mines was to remove several ­millions of tonnes of coal from the earth: 6.1 million tonnes from the Escarpment Mine and 4.1 from the Mt William Mine. The purpose of the extraction of the coal from these two mines was to export it for uses involving combustion in steel manufacturing. These uses would ­necessarily result in the release of greenhouse gas emissions. [182] Greenhouse gas emissions are understood to have a direct effect on global climate change—a transboundary phenomenon requiring international cooperation and response. Climate change is understood to have direct and significant effects on New Zealand and the Pacific region regardless of where greenhouse gases are emitted. It is understood these effects will increase in intensity and duration as global climate change is accelerated.174 [183] The most vulnerable in New Zealand society are likely to be ­disproportionately impacted by climate change, including Māori, women,

174 Ministry for the Environment New Zealand’s Fifth National Communication under the United Nations Framework Convention on Climate Change Including the Report on the Global Climate Observing System (ME 980, December 2009).

West Coast ENT Inc v Buller Coal Ltd—Judgment 401

children and future generations, low-income individuals and families, species at risk and endangered, and the indigenous flora and fauna of New Zealand’s unique environment.175 Local authorities are key actors in ­ addressing this vulnerability under the scheme of the Act and must therefore be able to fulfill their responsibilities for the promotion of sustainable management of natural and physical resources. [184] This appeal concerns applications for both the Escarpment Mine and the Mt William North Mine and has implications for future mining applications throughout the country. However, as it arose from the application for resource consents associated with the proposal by Buller Coal for the Escarpment Mine, I will confine my specific consideration to that mine. The Escarpment Mine [185] The question of this appeal relates specifically to the ­climate change effects of the offshore burning of coal extracted from the ­proposed mines and not to the on-site effects on the landscape and environment. ­Nonetheless, resource management decisions are not to be made in the abstract. The Act expressly directs decision makers to consider people and communities, future generations, and the life-supporting capacity of air, water, soil and ecosystems. In each decision, this implicates a specific place, created by and embedded in complex networks of ecological, physical, atmospheric, and social relations. These relations are profoundly impacted by the material effects at the core of such decisions, be they benefits or harms, and are therefore properly foregrounded at all levels of decision making. [186] The Escarpment Mine would be an open-cast mine situated on the ­Denniston Plateau. This is a remote and largely unmodified part of the West Coast. The site is within the takiwā of Ngāi Tahu, as recognised in s 5 of the Te Runanga o Ngai TahuAct 1996, specifically the Te Rūnanga o Ngāti ­Waewae region. The Poutini Ngāi Tahu, the Ngāi Tahu people of the West Coast,

175 Darren King, Guy Penny, and Charlotte Severne. “The Climate Change Matrix ­Facing Maori Society” in Richard AC Nottage and others (eds) Climate Change Adaptation in New Zealand: Future Scenarios and Some Sectoral Perspectives (New Zealand Climate Change Centre, 2010) at 100.

402  Estair van Wagner

are ­tangata whenua for the Kawatiri (Buller) district. The site is also within the Ngāi Tahu Claims Settlement Act 1998 area. [187] The proposed site is public conservation land, contained within the Mount Rochfort Conservation Area, which is a stewardship area pursuant to s 62 of the Conservation Act 1987. Stewardship land includes lands that are unassessed and yet to be classified by the Department of Conservation and may therefore be of high conservation value. Section 25 of the Conservation Act requires that such areas be managed to protect natural and historic resources. Notably, an Access Agreement with the Department of Conservation would be required under s 61 of the Crown Minerals Act 1991 before mining activity could proceed. [188] The Plateau is one of only two elevated Brunner coal measure ecosystems in New Zealand, the other being the Stockton Plateau. As the Stockton Plateau is the site of another significant coal mining operation, the Denniston Plateau is the only elevated Brunner coal measure ­ecosystem without large-scale land conversion and therefore the most representative of this type of ecosystem. A 2010 Department of Conservation report on the impacts of the proposed mine on the conservation area concluded: “The Denniston Plateau offers the most potential for the protection of an intact Brunner coal measure ecosystem”.176 A 1998 Department of Conservation-­ commissioned report on the area, including the areas which then became Mount Rochfort Conservation Area, notes that the sandstone erosion pavement ecosystem on the plateau is historically rare.177 It also noted that the unmined areas of both plateaus were the areas with the highest conservation value and therefore would be the most substantially impacted by future mining activity. [189] About half the Plateau is a nationally significant wetland and home to several nationally critical and endangered species. The Department of ­Conservation reports note ­several at risk, threatened and endangered ­species that are found in the area. Some of these are only found on

176 Jane Marshall L&M Escarpment Coal Mine Proposal on Mount Rochfort Public Conservation Area (TSO Plant Ecology, 2010). 177 FB Overmars and others. Ngākawau Ecological District: Survey Report for the ­Protected Natural Areas Programme (Department of Conservation, West Coast ­Conservancy, 1998).

West Coast ENT Inc v Buller Coal Ltd—Judgment 403

the Plateau, including original pink pine ­forest and the locally endemic P.r. patrickensis snails. The coal deposits themselves form integral parts of this ecological and physical environment. Their removal will bring about the fundamental transformation of the Denniston Plateau as it now exists. The Resource Management Act [190] The majority and the Chief Justice have provided thorough accounts of the relevant statutory frameworks. I concur with the Chief Justice that the Resource Management (Energy and Climate Change) Amendment Act 2004 provided for only a targeted and partial exclusion from local authority regulation of consents for the discharges of greenhouse gases in the atmosphere. I agree with her conclusion that this exclusion does not apply to the consents in question. I come to this conclusion for the following reasons. Part 2: purpose and principles of the Resource Management Act [191] The Act was enacted to reform environmental and land use planning in New Zealand. It was designed to “introduce a new over-arching, environmental ethic.”178 At the heart of this reform is Part 2 of the Act. Resource consent decisions under s 104(1), such as those in question on this appeal, are subject to Part 2 and the overriding purpose in s 5: the ­sustainable management of natural and physical resources. The structure of Part 2 and its place in the Act clearly impose an obligation on all those exercising functions under the Act to be informed by this overarching purpose.179 As Randerson J observed in A ­ uckland City Council v John Woolley Trust:180 Part 2 is the engine room of the RMA and is intended to infuse the approach to its interpretation and implementation throughout, except where Part 2 is clearly excluded or limited in application by other specific provisions of the RMA.

178 TV3 Network Services v Waikato District Council [1997] NZRMA 539, [1998] 1 NZLR 360 (HC) at 5. 179 Minister of Conservation v Kapiti Coast District [1994] NZRMA 385 (Planning Tribunal). 180 Falkner v Gisborne District Council [1995] 3 NZLR 622 (HC) at 632; Auckland City Council v John Woolley Trust [2008] NZRMA 260, (2008) 14 ELRNZ 106 (HC) at [47].

404  Estair van Wagner

Sections 310–313 provide for the types of declarations sought by the parties. There is nothing in ss 310–313 to indicate that the exercise of discretion in granting a declaration is not subject to the purpose of the Act. Nor is there anything to indicate that the decision maker is not required to consider the matters in ss 6, 7, and 8 when considering an application for a declaration. Indeed, in this case, since the underlying consent decision affected by the declaration granted by the Environment Court is expressly subject to Part 2, it is necessary to consider the declaration itself in light of Part 2. I note this was the approach taken by the Environment Court in Barrhill Chertsey Irrigation Ltd (Re an Application).181 Section 5 [192] To consider the declaration in light of Part 2, we must begin with the s 5 purpose: 5 Purpose (1) The purpose of this Act is to promote the sustainable management of natural and physical resources. (2) In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while— (a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) avoiding, remedying, or mitigating any adverse effects of ­activities on the environment.

While development and use are contemplated under the Act, they are not ­presumed to have primacy, and must be considered in light of the ­simultaneous need to sustain resources for future generations, safeguard the life-supporting capacity of air, water, soil, and ecosystems, and avoid, 181 Re Barrhill Chertsey Irrigation Ltd EnvC Christchurch C119/08, 31 October 2008 at [43]-[46] and [67]-[70].

West Coast ENT Inc v Buller Coal Ltd—Judgment 405

r­emedy and mitigate adverse effects on the environment. At the time of enactment, the Ministry for the Environment explained sustainable management as follows:182 Firstly, it is about recognising more fully the environmental costs of ­activities and policies in order to protect our natural and physical resources (better environmental valuation). Secondly, it is about better consideration of the earth’s resources, with a view to conserving the potential of resources for future generations (better environmental stocktaking).

[193] The definition of environment in s 2 also makes it clear that decision ­makers are to view the environment holistically and to recognise the relationships and interactions between different elements of the environment, including human communities, rather than treating different aspects in isolation or ­abstraction. Indeed, this innovative, integrated approach to resource management was discussed in the Explanatory Note on the Resource Management Bill: “The Bill encourages resource managers to consider the whole environment, rather than its isolated components.”183 This holistic assessment enables local authorities to fulfill the requirement for “integrated management” embedded in ss 30 and 31. As will be discussed below, a consent decision maker must weigh the purported benefits of a proposed development against the effects, actual and potential, of all aspects of the proposal on the environment as a whole. Sections 6 and 7 [194] Part 2 also contains ss 6, 7 and 8 which guide decision makers in fulfilling the purpose of the Act. Decision makers are required to consider all the relevant provisions in a particular case. Section 6 contains mandatory matters of national importance, which decision makers “shall recognise and provide for” and as such provides somewhat stronger direction than s 7 set out below. The s 6 matters are as follows: (a) the preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development:

182 Ministry for the Environment, Environment Update Series, Information Sheet No 6, December 1991. 183 Resource Management Bill 1989 (224-1) (Explanatory Note) at iii.

406  Estair van Wagner

(b) the protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development: (c)

the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna:

(d) the maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers: (e) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga: (f)

the protection of historic heritage from inappropriate subdivision, use, and development:

(g) the protection of protected customary rights.

Notably, several of the matters in s 6 deal with the protective aspects of sustainable management, both in relation to the ecological and physical world ((a) and (c)), but also human relationships with the natural world ((b), (d) and (e)) and the built environment ((f), (g)). Section 6 provides strong direction to decision makers to prioritise protection and preservation of the environment where appropriate. [195] Section 7 provides for other matters that decision makers are required to have particular regard to: (a) kaitiakitanga: (aa) the ethic of stewardship: (b) the efficient use and development of natural and physical resources: (ba) the efficiency of the end use of energy: (c)

the maintenance and enhancement of amenity values:

(d) intrinsic values of ecosystems: (e)

[Repealed]

(f)

maintenance and enhancement of the quality of the environment:

(g) any finite characteristics of natural and physical resources: (h) the protection of the habitat of trout and salmon: (i)

the effects of climate change:

(j)

the benefits to be derived from the use and development of ­renewable energy.

West Coast ENT Inc v Buller Coal Ltd—Judgment 407

Section 7 includes a mixture of environmentally-focused measures ((d) and (f)) with those explicitly contemplating human use and development ((b), (ba), (c), (g), (h) and (j)). Paragraphs (ba), (i) and (j) were added by the Amendment Act in 2004 to elevate climate change considerations in resource management decision making. [196] The meaning of s 7(j) was discussed in the decision of this Court in ­Genesis Power Ltd v Greenpeace New Zealand Inc and is not at issue in this appeal.184 Based on the legislative history, I am inclined to agree with the Chief Justice that s 7(i) refers specifically to the effects of climate change. I reject an interpretation of s 7(i) that requires decision makers to consider the effects of climate change in isolation from the effects of activities on climate change as such an interpretation would undermine the duty of local authorities to achieve integrated management and to treat the environment and ecosystems as a whole. Rather, the provision should be understood as an expansion of the ways in which local decision makers can grapple with climate change. [197] While the parties did not address s 7(ba), the Explanatory Note and the Select Committee Report clarify that s 7(ba) was intended to expand consideration of the end use of minerals despite the exclusion of minerals from s 5(2)(a) and the case law excluding it from s 7(b).185 Indeed, the language was changed from “use” to “end use” to clarify that while the rate of depletion of minerals remains excluded from s 5 and s 7(b), decision makers are now required to have particular regard to the efficiency of the end use of energy from minerals.186 This clearly includes the end use of coal that would be extracted pursuant to the present applications. [198] In my view ss 7(a) and (aa) are particularly relevant to the declaration in question. These provisions provide helpful interpretive guidance about the nature and substance of resource management decision making under the Act and the responsibility given to decision makers to make informed, balanced and holistic decisions about their local environment. 184 Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112, [2009] NZLR 730. 185 Resource Management (Energy and Climate Change) Amendment Bill 2003 (48-1) (Explanatory Note) at 3. See Winter v Taranaki Regional Council [1999] NZRMA 1 (EnvC). 186 Resource Management (Energy and Climate Change) Amendment Bill 2003 (48-2) (Select Committee Report) at 4–5.

408  Estair van Wagner

[199] The Act defines kaitiakitanga as “the exercise of guardianship by the ­tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources, and includes the ethic of stewardship”. I note that this definition should be viewed as a starting point for s 7(a) rather than a definitive interpretation. As with any language and culture, Māori words and concepts are always evolving and adapting to new contexts and this fluidity should be reflected in the interpretations of kaitiakitanga under the Act. The meaning in any particular case must be interpreted from the perspective of the tangata whenua of the area and, as the definition notes, in accordance with tikanga Māori.187 For Ngāi Tahu, their shared whakapapa with the natural environment of Te Waipounamu descending from Papatūānuku (earth mother) links the welfare of the people directly to the welfare of the mountains, waters, and all other beings. Kaitiaki duties to care for and sustain all elements of the natural world flow from this relationship of interdependence and mutual care.188 [200] With this contextual specificity in mind, kaitiakitanga can broadly be seen as a “socio-environmental ethic” in which “a two-way relationship exists that involves obligations to give, receive and repay, a relationship that can be likened to a type of double trusteeship between kaitiaki and resources.”189 In my view, s 7(a) therefore requires a decision maker under the Act to have particular regard to Māori views about land use based on the reciprocal obligations and responsibilities between a resource and the tangata whenua of an area. In Takamore Trustees the High Court made the following ­observations on s 7(a):190 Section 7(a) creates not just an obligation to hear and understand what is said, but also to bring what is said into the mix of decision making. Thus, in terms of s 7 the territorial authority, and in turn the Environment Court, had to understand (presumably through consultation) and then have ­particular regard to, in

187 Friends and Community of Ngawha Inc v Minister of Corrections [2002] NZRMA 401 (HC) at [7]; affirmed [2003] NZRMA 272 (CA). 188 Department of Conservation West Coast Conservation Management Strategy 2010–2020 (West Coast Conservancy, 2010). 189 Merata Kāwharu, “Kaitiakitanga: a Maori Anthropological Perspective of the Maori Socio-Environmental Ethic of Resource Management” (2000) 109 Journal of the Polynesian Society 349. 190 Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496 (HC).

West Coast ENT Inc v Buller Coal Ltd—Judgment 409

achieving the purpose of sustainable management of the ­natural and physical resources of the area, the view of the trustees that this development compromised the exercise of guardianship of this land.

In other words, the decision-making process must leave room for a fulsome account of the kaitiaki relationship and responsibilities. In the case of Ngāti Waewae, “kaitiakitanga” entails an active exercise of power in a manner beneficial to the resource.”191 Mine development requires consideration of long-term impacts on the health of waterways and future generations. Tikanga specifically requires consideration be given to the mauri of the minerals themselves and to the maintenance of unmodified environments because once removed, the mauri cannot be restored.192 [201] In the context of climate change, Māori have strongly advocated for an approach based on Māori knowledge and the kaitiakitanga responsibilities.193 This holistic and relational perspective on resource management is likely to require the consideration of the impacts on climate change of mining activities as well as the impacts of climate change on particular places. [202] Section 7(aa) acknowledges that non-Māori in New Zealand may also have relationships with the environment and, therefore, obligations and responsibilities towards particular places and resources. While there has been little consideration of s 7(aa) by the courts to date, it clearly requires that a broader set of relationships and responsibilities between people and the environment inform the decisions made under the Act, including resource consent decisions. As with s 7(a), by having particular regard to such views, a decision maker is required not only to hear and understand, they must bring such perspectives “into the mix of decision making”.194

191 West Coast Regional Council Regional Land and Water Plan (May 2014) at 2.7. 192 Francois Tumahai Cultural Impact Assessment of Escarpment Mine Project (2010); Dyanna Jolly, Cultural Impact Assessment Report: For Activities Associated with the Proposed Solid Energy Cypress Coal Mine (Te Rūnanga o Ngāti Waewae, 2004). 193 Darren Ngaru King and Guy Penny The 2nd Māori Climate Forum–Hongoeka Marae, Plimmerton: Summary Report (NIWA Client Report AKL2006-099, 24 May 2006); Ministry for the Environment Consultation with Māori on climate change: Hui Report (ME 830, November 2007). 194 Takamore Trustees (n 190).

410  Estair van Wagner

[203] Together ss 7(a) and (aa) provide important guidance on the s­ ubstance of the decision-making process under the Act. They require ­decision makers to directly contemplate the responsibility, and in the case of k­ aitiakitanga the duty, of individuals and communities to care for the environment when making decisions about use and development. By having particular regard to the relationships of responsibility and reciprocity that individuals and communities have with the places at stake in resource management decisions, local authorities are tasked with considering the long-term future implications of development and use on not only the physical environment, but also on the relations between people and the environment, and the duties and obligations that flow therefrom. Section 8 [204] The parties did not raise the possibility that a declaration that the exclusion of climate change considerations from consents decisions related to mining is inconsistent with s 8 of the Act. Therefore, no evidence or argument was presented on this question and reaching a conclusion on this matter is beyond the scope of this appeal. However, I note that the potential application of s 8 to issues raised here remains an open question to be determined in future proceedings in light of the recognition of Māori relationships with land, waters and taonga in s 6(e), kaitiakitanga in s 7(a), and the particular vulnerability of Indigenous peoples, culture and interests to the effects of climate change. For example, the end use of coal and its global effects on climate change have particular significance in light of the ancestral, cultural and spiritual connections between Māori and the greater Pacific Region. Conclusion on Part 2 [205] There are two questions with respect to Part 2: first, whether s 3 of the Amendment Act qualifies the purpose of the Act; and, secondly, whether the declarations promote the sustainable management purpose of the Act. 1. Did s 3 of the 2004 Amendment Act qualify the s 5 purpose of the Act? [206] With respect to the majority, I cannot agree that s 3 of the 2004 Amendment Act—a purpose provision for a short and targeted amendment bill—was intended to “qualify the high-level, general, and overarching,

West Coast ENT Inc v Buller Coal Ltd—Judgment 411

provisions of s 5 of the principal Act”.195 Section 3 of the Amendment Act provides: The purpose of this Act is to amend the principal Act— (a) to make explicit provision for all persons exercising functions and powers under the principal Act to have particular regard to— (i)

the efficiency of the end use of energy; and

(ii) the effects of climate change; and (iii) the benefits to be derived from the use and development of renewable energy; and (b) to require local authorities— (i)

to plan for the effects of climate change; but

(ii) not to consider the effects on climate change of discharges into air of greenhouse gases.

On a plain reading of the 2004 Amendment Act, s 3 is not an operative provision intended to be applied literally to read down core provisions of the national environmental and planning legislative scheme—the very scheme that would assist all levels of government to deal with many dimensions of climate change and meet New Zealand’s international obligations. Indeed, the Amendment Act Explanatory Note expressly states, under a heading called “Statement of problem and need for action”, that the changes were to be implemented in part in order to meet these obligations, and to “provide a stronger legal mandate to take into consideration energy and climate change matters.” [207] There is no evidence within the text of s 3, the Explanatory Note, or the Select Committee report that the Amendment Act was intended to amend Part 2 of the Act or to limit the interpretation of the purpose and ­principles therein. The Select Committee report specifically notes in the section entitled “Purpose” that in order to advance national coordination of controls on greenhouse gas emissions it “removes the power of regional

195 Royal Forest and Bird Protection Society of New Zealand Inc v Buller Coal Ltd [2012] NZHC 2156, [2012] NZRMA 552 at [49].

412  Estair van Wagner

councils to consider the effect of greenhouse emissions on climate change when ­ making rules in regional plans or determining air discharge ­consents.”196 In my view, a plain reading of the Bill and supporting Parlia­ mentary materials provides for a targeted exclusion of local ­ authority regulation and ­ ­ decision-making power, while enacting an otherwise expanded jurisdiction to confront the reality of climate change. [208] As is consistent with the structure of decision making under the Act, which intentionally locates decision-making power as close as ­possible to the areas that will experience the impacts of decisions and to the communities that have obligations towards the relevant environments, local authorities remain the operational decision makers on resource consents, with guidance from central government on areas of national importance. This structure should not be undermined lightly or by implication. Therefore, the effect of the 2004 Amendment Act must necessarily be limited to air discharge consent applications. 2. Does the granting of the declaration promote sustainable management? [209] Given my conclusion that the 2004 Amendment Act does not qualify Part 2 of the Act, the second inquiry is whether the decision on the application for the declaration promotes sustainable management in light of s 5 and the ss 6, 7 and 8 interpretive principles. As in Barhill, it is clear that the present declaration is of particular importance both in terms of the consequences for the places and communities involved in the specific mining proposal and because it raises novel questions of interpretation of resource consents. For the reasons below, it is my view that the application for the declaration cannot be said to promote sustainable management and therefore should not be granted. [210] In combination, the intergenerational and protective aspects of s 5, the protective emphasis of the s 6 matters of national importance, and the s 7 recognition of relations of responsibility with the environment require that decision makers recognise the intrinsic value of the environment while simultaneously providing for sustainable human use and development. As noted above, the Act does so without presuming the primacy of either protection or use. Nor does it presume an inherent conflict. Rather, 196 Resource Management (Energy and Climate Change) Amendment Bill 2003 (48-1) (Explanatory Note) (emphasis added).

West Coast ENT Inc v Buller Coal Ltd—Judgment 413

it emphasises that responsibilities to the environment are intrinsically linked to the use of natural and physical resources for social, economic and cultural well-being. Sustainable management specifically enables forms of human use and development of natural and physical resources that uphold obligations to, and relationships with, the environment and future generations. [211] Thus, while sustainable management is not a prescriptive concept or list of factors to be rigidly applied, the purpose and the principles of Part 2 provide for an ethic of care to guide decisions about how natural and physical resources are used, developed and protected. It requires the contextual application of the related but distinct concepts of ­kaitiakitanga and stewardship from both Māori and European traditions. It remains essential to retain the distinction between these concepts as they arise in connection with particular places and communities; however, I note that each concept expressly contemplates the ethical and legal dimensions of relationships between people and place and the duties to care for the natural world that arise therefrom. They also each incorporate an acknowledgment of the limitations of our understanding and our ability to control the natural environment. In the context of resource consents, it falls to a consent authority to assess the effects of the proposed activities in light of the applicable relationships and duties, and to determine whether a proposal complies with the overarching sustainable management purpose. Part 2 necessarily requires a holistic and cautious approach to addressing climate change and other environmental issues in the context of a particular place and set of relationships. It requires decision makers to account for the intergenerational, interspecies, and integrated effects of a resource management decision. [212] In my view, the declaration would limit the ability of decision makers to make decisions about mining that are informed by the principles in Part 2, and therefore, to promote the sustainable management purpose of the Act. ­Mining has both direct and indirect adverse effects on the environment, with the potential to fundamentally transform the landscape, the atmosphere, the life-supporting capacity of ecosystems, and therefore the relationships between human communities and the environment. Decision makers require broad discretion to consider the full range of such effects and ­determine whether a particular application, in its entirety, is consistent with Part 2 and the promotion of sustainable management. There is nothing in the 2004 Amendment Act that expressly justifies such a limitation. Indeed, the broader context of the amendments leads to the opposite conclusion.

414  Estair van Wagner

[213] I would therefore allow the appeal and set aside the declarations made. I would grant a declaration that a decision maker considering resource consents associated with mining for export of fuels must consider the contribution that the subsequent discharges into air from combustion of the extracted fuels will have towards climate change. Effects-based decision making and integrated resource management [214] While my conclusion on Part 2 is sufficient to determine this appeal, in my view the majority’s treatment of effects and s 104(1) is also inconsistent with the plain wording of the Act. [215] The Act was hailed internationally as a new high standard for environmental law when it was enacted. Chief amongst the innovative aspects of the new Act were the effects-based framework, focused on controlling effects rather than activities, and the goal of establishing integrated resource management. [216] Both of these core elements of the Act require a robust and comprehensive assessment of effects in the circumstances of each particular case. Indeed, the comprehensive approach to assessment of effects is so essential to the scheme of the Act that “effects” are defined very broadly in a stand-alone s 3: Meaning of effect

In this Act, unless the context otherwise requires, the term effect includes— (a) any positive or adverse effect; and

(b) any temporary or permanent effect; and (c) any past, present, or future effect; and (d) any cumulative effect which arises over time or in combination with other effects— regardless of the scale, intensity, duration, or frequency of the effect, and also includes— (e) any potential effect of high probability; and

(f) any potential effect of low probability which has a high potential impact.

I note that no express or implied intention to limit the interpretation of “effects” can be found in either the Select Committee Report or the Explanatory

West Coast ENT Inc v Buller Coal Ltd—Judgment 415

Note for the Amendment Bill. While Dye v Auckland Regional Council197 is relied on by the majority to support a narrow interpretation of effects under the Act, there was no mention of the case and the complex context of the interpretation of effects in any of the parliamentary materials. Nor was the case raised by counsel in the present appeal. Rather, the broad s 3 definition is expressly referenced by the Select Committee Report, which notes the “application” and “meaning” of the term “effect” are already clarified within s 3.198 Indeed, the purpose provision of the Bill was amended in the Report by removing “potential” as the s 3 meaning of “effect” already provided for potential effects of high probability or low probability but with high potential impact. In my view, this clearly demonstrates an intention to maintain the broad definition of effects set out in s 3. As with the Part 2 analysis above, the intention to make such a significant change to a foundational concept in the Act should not be read into the 2004 Amendment Act on the basis of a judicial decision made in a complex and largely unrelated context. [217] Unlike “effects”, the concept of “integrated resource management” is not defined in the Act. However, its meaning is evident from the structure of Part 2 discussed above and in the s 104(1) consent procedure through which a ­facts-based assessment takes place in each case: Consideration of applications

(1) When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to— (a)

any actual and potential effects on the environment of a­ llowing the activity; and

(b) any relevant provisions of— (i)

a national environmental standard:

(ii)

other regulations:

(iii) a national policy statement: (iv) a New Zealand coastal policy statement:

197 Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA). 198 Resource Management (Energy and Climate Change) Amendment Bill 2003 (48-1) (Explanatory Note) at 2 and 7.

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(v)

a regional policy statement or proposed regional policy statement:

(vi) a plan or proposed plan; and

(c) any other matter the consent authority considers relevant and reasonably necessary to determine the application.

Section 104(1)(a) requires consent authorities to have regard to: “any actual or potential effects on the environment of allowing the activity.” It is important to note the mandatory nature of this broad assessment—the consent authority is required to consider any actual or potential effects. The assessment is also expressly subject to the broad purpose and principles set out in Part 2. As noted by the Chief Justice, the discretionary power to disregard an adverse effect is provided for only in limited circumstances by s 104(2), which states that the consent authority may disregard an adverse effect if a national environmental standard or the plan permits an activity with that effect. [218] The Amendment Act did modify this broad approach under s 104(1) by the new s 104E: 104E Applications relating to discharge of greenhouse gases

When considering an application for a discharge permit or coastal permit to do something that would otherwise contravene section 15 or section 15B relating to the discharge into air of greenhouse gases, a consent authority must not have regard to the effects of such a discharge on climate change, except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases, either— (a)

in absolute terms; or

(b) relative to the use and development of non-renewable energy.

However, it did so only in the specific context of consent applications relating to permits for discharges of greenhouse gases. The Select Committee report characterises this limitation as applying in “specified ­circumstances”.199 With respect, it is difficult to reconcile this ­emphasis on a broad assessment of effects under s 104(1) and Part 2 and the Select Committee’s characterisation of s 104E as applying in “specified

199 Resource Management (Energy and Climate Change) Amendment Bill 2003 (48-2) (Select Committee Report) at 6.

West Coast ENT Inc v Buller Coal Ltd—Judgment 417

c­ ircumstances”, with the reasoning of the majority that all resource consent decisions are so limited. A prohibition applicable to all resource consent applications is, by definition, not a prohibition that applies in “specified circumstances”. [219] This is apparent when one considers the context of the applications in question. The consents in question are part of large-scale industrial mining projects within New Zealand, the purpose of which is to extract coal for export, sale, and eventual combustion by the purchaser and end user. There is no purpose in extracting the coal apart from facilitating this specific end-use. The established effects of this extraction and combustion on global climate change are not in question on this appeal. As noted by the Chief Justice at ­paragraph 90, these effects appear to be precisely the sort of cumulative effect that the definition in s 3 permits to be taken into account. These are effects understood to lead directly to impacts on land, waters, ecosystems, people and communities in New Zealand and beyond. These effects of climate change are a matter to which decision makers, including the present Court on this appeal, must have particular regard. [220] As noted above, the consent to extract coal is just one of a suite of consents that were required for the mines. These other land use and water consents provided for unrestricted consideration and conditions by the consent authority. The Chief Justice has already pointed out that these activities are not properly characterised as “ancillary” and I agree with her for the reasons she gives. The Oxford Dictionary defines ancillary as: “Providing necessary support to the primary activities or operation of an organization, system, etc.” Or, “In addition to something else, but not as important”. It is clear from the majority’s characterisation of the relevant consents that they intend “ancillary” to imply that these consents are not as important as the direct consent for the mining of coal. In my view, this approach undermines the goal of integrated resource management and harks back to a system of fragmented and reactive decision making that is incapable of c­ onfronting complex systemic environmental issues and manages rather than solves problems.200 [221] Coal is not an independent commodity that can be extracted from an environment without fundamentally transforming the surrounding physical 200 Ulrich Klein “Integrated Resource Management in New Zealand–A Juridical ­Analysis of Policy, Plan and Rule Making under the RMA” (2001) NZJEL 1 at 5–6.

418  Estair van Wagner

and ecological systems. It is a functional and integral part of a landscape and the associated ecosystems. Like other minerals, unextracted coal functions within a system to perform complex interactions supporting indigenous and other ecosystems and their flora and fauna. Given this context, the mining of coal for industrial use and export necessarily transforms the environment in both direct and indirect ways, and is properly characterised as a complex and multi-faceted but unified operation. [222] Though the extractive aspect of the development may be understood as the primary activity in the sense that it is the impetus for the related activities in question on the land use and water permit consents, the other aspects of the operation, for which such consents are required, are necessary and integral to the process. There would be no major mining development if many, if not all, of these activities did not receive consent: disturbance of soil and vegetation, modification of waterways, use and discharge of contaminants, construction of a pump station, water and slurry pipelines, construction of a processing plant, roads and a dewatering facility, storage of hazardous substances and ­discharges of dust into the air. Such activities have very significant environmental effects, possibly more significant than the act of extraction itself, and are therefore subject to consent requirements under the applicable plans. A thorough effects-based analysis must consider the mine development as a whole instead of treating the removal of the mineral from the earth in the abstract. [223] In my view, it is therefore inapt to characterise the specific consents for the mining of coal to be more important than those associated with the other activities. Rather, in the interests of ensuring integrated resource management, a consent decision maker is required by s 104(1) to consider any actual or potential effect of the development, including the end use of coal extracted for export, in the context of the suite of consents required. This requirement has been limited in the specific circumstances of discharge to air consents, which are dealt with through the national scheme for emissions control. Where an application is not for a consent for a discharge into air, the effect of the Amendment Act is limited to the Part 2 considerations included in ss 7(ab), (i) and (j). Remoteness and tangibility [224] It is important to note that none of the parties, nor any of the consent authorities, is able to measure the specific or quantifiable contribution

West Coast ENT Inc v Buller Coal Ltd—Judgment 419

to climate change that would result from the extraction, export and offshore combustion of the coal mined in either development. Nor are they able to predict the specific impact of such a contribution to climate change on any particular environment, including the environment of the proposed mine areas. However, I concur with the Chief Justice that the contribution of greenhouse gases to climate change is properly characterised neither as remote nor intangible as a result of this uncertainty. [225] This conclusion flows logically from the nature of the responsibility given to a consent decision maker to make an informed and forward-looking decision about a particular application. Their task is not an exercise in assigning fault or apportioning liability for the effects under consideration. Rather, in planning for sustainable resource management, the s 104(1) decision-maker is required to look at the broadest range of the effects of a proposed land use as a whole on the environment, also broadly defined in s 2, and to make a decision consistent with the ethic of care set out in Part 2. Nothing in s 3 or s 104(1) excludes effects that may be considered small or indirect. Such a conclusion about the scale and intensity of a particular effect could be relevant to whether the consent is ultimately granted, but it does not exclude such effects from consideration at the outset.201 [226] Therefore, in addition to my conclusion on Part 2 above, I find that the declarations are inconsistent with s 3 and s 104(1) of the RMA. [227] I would allow the appeal, set aside the declarations made, and grant the first declaration sought by the appellants.

201 Environmental Defence Society Inc v Taranaki Regional Council EnvC Auckland A184/2002, 6 September 2002; Beadle v Minister of Corrections EnvC Auckland A074/02, 8 April 2002.

420 

Part IV

Crime

422 

Sexual Offending

424 

22 Commentary on R v S Reasonable Grounds to Believe an Unconscious Woman is Consenting?: The Relevance of Advance Consent ELISABETH McDONALD

Reform of ss 128 and 128A of the Crimes Act 1961 In 1975 in DPP v Morgan,1 the House of Lords held that a man who honestly but unreasonably believed that a woman was consenting to sexual intercourse was not guilty of rape. In 1986 the New Zealand legislature responded to feminist outcries following this decision by amending the definition of rape in s 128 of the Crimes Act 1961. The prosecution must now prove, beyond reasonable doubt, that the complainant did not consent to the sexual connection and that the defendant did not have reasonable grounds to believe she was consenting. An honest but unreasonable belief in consent will not suffice to render the defendant’s actions lawful. Other more wide ranging legislative reform also occurred in 1986.2 The main change to the definition of rape made at that time was to remove the exemption for marital rape— a long standing but compellingly criticised example of irrevocable prospective consent. However, there is still no positive statutory definition of consent, and the Select Committee considering the most recent reforms in 2005 rejected calls for such an amendment. In the Committee’s view, the common law has developed adequately as to the meaning of consent.3

1  DPP v Morgan [1976] AC 182 (HL). The decision prompted law reform in several other common law jurisdictions as well as New Zealand. 2 See further, G Orchard, ‘Sexual Violation: The Rape Law Reform Legislation’ (1986) 12 New Zealand ­Universities Law Review 97. 3  Law and Order Select Committee Report, Crimes Amendment Bill (No 2) (2005) 9.

426  Elisabeth McDonald One of the stated goals of the 2005 reform package was to render sexual offences genderneutral, although ‘rape’ was retained as a separate way of committing sexual violation. In this regard, s 128 currently provides: (1) Sexual violation is the act of a person who— (a) rapes another person; or (b) has unlawful sexual connection with another person. (2) Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis,— (a) without person B’s consent to the connection; and (b) without believing on reasonable grounds that person B consents to the connection … (3) Person A has unlawful sexual connection with person B if person A has sexual connection with person B— (a) without person B’s consent to the connection; and (b) without believing on reasonable grounds that person B consents to the connection.

Other aspects of the 2005 reforms added further grounds to s 128A,4 a section which lists when ‘allowing’ sexual activity does not amount to consent. The relevant additional parts of s 128A, for the purpose of this discussion, are: 128A Allowing sexual activity does not amount to consent in some circumstances (3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious. (4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the ­activity  … (9) For the purpose of this section,— allows includes acquiesces in, submits to, participates in, and undertakes …

Academic commentators have claimed that s 128A(3) ‘is expressed in absolute terms’,5 suggesting that, provided that the complainant is [asleep or] unconscious at the time of the activity, prior consent to, or acceptance of unconscious sexual activity will not constitute consent … any ‘unconsented-to’ sexual connection …, occurring while the complainant is asleep or unconscious, will necessarily amount to unlawful sexual connection, regardless of the pre-agreed preferences or agreements of the parties. (emphasis added)

This statement indicates some agreement with the approach of the Supreme Court of ­Canada in R v JA,6 in which the Court held that under the Canadian legislation an individual must be conscious throughout the sexual activity in order to give valid consent.7 If it is not possible for a person to consent to future sexual activity, this does raise issues about the potential for prospective or advance consent in the case of anticipated future incapacity. For example, what of clearly recorded advance consent for various forms of specific 4 

Sub-ss (3), (4) and (5) were added. AP Simester and WJ Brookbanks, Principles of Criminal Law, 4th edn (Wellington, Brookers Ltd, 2012) 654. 6  R v JA [2011] SCC 28, [2011] 2 SCR 440. See a reimagining of this decision by J Koshan in ‘Marriage and Advance Consent to Sex: A Feminist Judgment in R v JA’ (2016) 6 Oñati Socio-Legal Series 1377. 7 ibid [65] and [66]. Whether ‘active consent’ is required under New Zealand law is currently before the Supreme Court: Christian v R [2016] NZSC 170. 5 

R v S—Commentary 427 sexual activity that could be undertaken during consensual temporary asphyxiation? While some may sympathise with calls not to criminalise conduct in some very specific contexts, there are significant risks to public safety with allowing defendants to argue they continued to have sex with an unconscious woman on the basis she had previously consented. A further question, if advance consent is invalid in the context of sexual activity, is whether such consent nevertheless provides grounds for the defendant to form a reasonable belief in consent. In the 2011 case of R v Pakau,8 the Court of Appeal held that if the complainant was unconscious during the sexual connection (she was grabbed from behind and had no memory of the alleged rape), then ‘she could not have consented and Mr Pakau could not reasonably have considered that she did consent’.9 In most cases, a factual finding that there was no consent, will usually be followed by a decision that the defendant had no reasonable belief in consent, as in Pakau—but nevertheless all elements of s 128 must be satisfied beyond reasonable doubt: intentional sexual connection and lack of consent (the actus reus) and lack of reasonable belief in consent (the mens rea). According to Andrew Simester and Warren Brookbanks, if sexual violation occurs ­whenever the complainant is unconscious or asleep this raises:10 difficult questions of public policy, especially when the claimed consent occurs within the context of an enduring intimate relationship in the nature of marriage, where consent is often assumed and seldom questioned. However, a stringent rule may be a necessary protection to ensure truly autonomous decision-making in the area of intimate relationships.

Such difficult questions of public policy came before a full bench of the High Court in R v S.11 The facts of the case required consideration of the arguments made prior to the decision by the authors of Adams on Criminal Law:12 Although subs (3) [of s 128A] renders prior consent to sexual activity whilst asleep or unconscious legally ineffective, it is arguable whether a defendant who engages in such activity in reliance on a reasonable belief in the existence of such prior consent is entitled to be acquitted. While the basic principle underlying s 128 is that where consent is in issue it will always be incumbent upon the Crown to prove absence of reasonable belief in order to secure a conviction, it is arguable that where sexual activity with a person who is known to be asleep or unconscious is concerned the situation is different.

The Decision of the High Court The defendant, Mr S, and the complainant had been in an off and on relationship for nearly four years. During that relationship, and even after its cessation, they both used drugs regularly, and were heavy users in particular of the party drug gamma-hydroxybutyrate

8 

R v Pakau [2011] NZCA 180. ibid [30]. 10  Simester and Brookbanks, Principles of Criminal Law (n 5) [655]. 11  R v S [2015] NZHC 801. 12  B Robertson et al (eds), Adams on Criminal Law (online edition, Thomson Reuters, 2015) CA128A.05(1). This section of the text has been updated to reflect the decision in R v S. 9 

428  Elisabeth McDonald (GHB). GHB produces feelings of euphoria, relaxation and sociability, and an increased urge for sex. It can also be very difficult to regulate the amount of the drug taken to achieve the effects desired. Other names for GHB include grievous bodily harm (GBH) or fantasy, or the ‘date rape’ drug—as it can cause sleepiness, lack of memory and unconsciousness. Mr S and the complainant took GHB on virtually every occasion they engaged in sexual activity. The complainant found video footage of her and Mr S having sex. This was not unexpected as she had agreed to Mr S filming their activities on several occasions. Most of the recording she was untroubled by, as although she did not have memories of all of it, she appeared to be conscious and fully participating. But video footage relating to interaction on a particular occasion led her to make a complaint to the police. In this footage the complainant appeared to be asleep or unconscious. Over the course of about 25 minutes, six separate instances of sexual connection occurred. Mr S was therefore charged with six counts of sexual violation. At the judge-alone trial, the footage was played. It was established beyond reasonable doubt that the physical acts on which the charges were based were proved, and were intentional. In relation to one of the charges, the trial judge found the Crown had not proved lack of consent because the footage showed active participation by the complainant— therefore­‘it was reasonably possible that the complainant consented to this particular form of activity’.13 With regard to the remaining five charges, it was clear that at the material times the complainant was severely affected by GHB. She had lapsed into sleep or semi-consciousness. Although s 128A(3) may not have applied at all times, the Judge found that the complainant was ‘obviously so affected by the drugs she had consumed that she was incapable of giving true consent’—so s 128A(4) operated to establish that the complainant did not consent regarding all the other sexual activities.14 Mr S gave evidence that the complainant had told him on earlier occasions that she was happy for him to continue sexual activity even if she fell asleep or became unconscious, but that he should wake her up before he ejaculated. The Judge preferred his evidence to that of the complainant, who said she told Mr S that he was not to have sex with her unless he woke her up. In considering whether it was possible for the complainant to have consented to the sexual activity undertaken before she became affected by GHB, the Judge held that as a matter of law it ‘was not possible for the complainant to consent to future sexual activity’, referring to R v Adams.15 In that case the Court of Appeal cited with approval the standard directions from the Criminal Jury Trials Benchbook:16 The material time when consent, and belief in consent, is to be considered is at the time the act actually took place. The complainant’s behaviour and attitude before or after the act itself may be relevant to that issue, but it is not decisive. The real point is whether there was true consent … at the time the act took place.

13 

R v S (n 11) [11]. ibid [13], emphasis added. 15  R v Adams (CA 70/05, 5 September 2005) [15]. 16  ibid [48]. 14 

R v S—Commentary 429 The final element of s 128 is whether the defendant did not believe on reasonable grounds that the complainant was consenting. After finding that the complainant had given prior consent for Mr S to continue even when she was asleep or unconscious (up to the point he ejaculated), the Judge concluded he may therefore have believed on reasonable grounds that the complainant was consenting, and so acquitted Mr S of the remaining five charges. This outcome was also based, among other factors, on the existence of the four-year relationship; the voluntary and heavy use of GHB, knowing it may cause loss of consciousness; the nature of the sexual activity being consistent with their previous sexual practices; and that the complainant had taken off her underwear at the beginning of the recording (presumably establishing some kind of conscious control of her actions). The Solicitor-General appealed on a question of law, the High Court having no jurisdiction to revisit the Judge’s finding of fact. The Solicitor-General argued that ‘anyone engaging in sexual activity with a person who is asleep and unconscious cannot reasonably believe that the other person is consenting’.17 In other words, as suggested in Adams on Criminal Law, a defendant charged with the sexual violation of a person who is asleep or unconscious cannot defend the charge on the basis that he or she believed on reasonable grounds they were consenting. The appeal was dismissed. The Court distinguished R v JA on the basis that the statutory context is different. In that case the Canadian Supreme Court held that the complainant’s lack of ability to consent at the time prevents a defendant relying on a claim that they had reasonable grounds to believe the complainant was consenting, based on a prospective agreement. The High Court also found that the Court of Appeal’s decision in Pakau was distinguishable on its facts. In the Court’s view, the mens rea required by s 128 must be independently proved in every case, even where an aspect of s 128A is established. When amending s 128A in 2005, it was noted, Parliament could have expressly removed the defence of reasonable belief in consent, but it did not. By contrast, s 132(4) of the Crimes Act 1961 provides that it ‘is not a defence to a charge under this section that the person charged believed that the child was of or over the age of 12 years’. Parliament, the Court stated, therefore ‘must have intended defences based on reasonable belief in consent to remain viable’ in respect of cases to which s 128A(3) and (4) apply.18

The Feminist Judgment In her dissenting judgment, Benton-Greig J underlines the significance of the decision to the lives of women by referring to the complainant using a pseudonym, rather than just by her role in the case. This reminds the reader that Ms Camellia exists as a person and her experiences, as she describes them, need careful attention by the courts. To avoid the risk of using a surname of a person connected to the case, or a surname someone may associate erroneously with the case, a noun was initially chosen as the name, and that name was checked for prevalence in the country-wide telephone directories. That search revealed no

17  18 

R v S (n 11) [26]. ibid [35].

430  Elisabeth McDonald Camellias. Her Honour also acknowledges the harm to Ms Camellia, given that it was accepted at trial that she did not consent to the sexual acts carried out by Mr Smolt (also a pseudonym) when she was unconscious. The issue before the High Court in R v S allows Benton-Greig J, to explore the politics of consent to sexual activity, a rich historical site for feminist critique—and in particular,19 whether the full and informed consent of a person to sexual activity at the time of that activity must be the defining inquiry of legality under s 128. Benton-Greig J argues that the varied nature of sexual intimacy means care should be taken when relying on prior conduct to found reasonableness of belief.20 She demonstrates how rape mythology can be reinforced during the trial process, even by an experienced woman judge sitting alone as finder of fact as was the case in R v S. The feminist judge is also of the view that R v JA should give guidance to New Zealand courts as the purpose of the reforms in both jurisdictions, in particular the need to protect women (and vulnerable people more generally) from rape and sexual violence, is better served by the approach of the Canadian Supreme Court. Foreshadowing the obiter observations of Glazebrook J in Ah-Chong v R,21 decided two months after R v S, Benton-Greig J asserts that a defendant’s belief in consent can never be based on reasonable grounds given that consent cannot legally exist in this fact situation, due to the wording of s 128A(3) and (4). Like Glazebrook J, who emphasised in Ah-Chong ‘that both the common law and statutory law as to consent are substantially influenced by policy considerations’,22 Benton-Greig J notes that the changes to s 128A at issue in R v S were ‘a result of another period of significant social change, advocacy and debate’.23 In her minority judgment she concludes that Parliament must have intended the changes to s 128A to have impact in relation to both the actus reus and mens rea of s 128 in cases where non-consensual sex has occurred. These changes were intended to ensure that evidence about lack of consent need not be offered by people so intoxicated that they ‘cannot consent or refuse to consent to the activity’ (to use the words of s 128A(4)). Parliament’s intent was ‘to protect incapacitated persons from sexual violation’.24 Accordingly, it must undermine the purpose of the provision to allow a person, knowing the complainant cannot refuse to consent, to be acquitted on the grounds of having reasonable belief in the existence of consent. This argument is even stronger when coupled with the unchallenged position on appeal that prior consent to sexual activity cannot be regarded as valid consent.25 Her Honour also disagrees with the majority’s reliance on a contextual statutory interpretation argument, which relies on a particular reading of s 132. Highlighting the specific protection of young children provided by ss 132–134, she considers that the approach in

19  See, eg, S Croskery-Hewitt, ‘Rethinking Sexual Consent: Voluntary Intoxication and Affirmative Consent to Sex’ (2015) 26 New Zealand Universities Law Review 614; V Munro, ‘Constructing Consent: Legislating Freedom and Legitimating Constraint in the Expression of Sexual Autonomy’ (2008) 41 Akron Law Review 923; R Hunter and S Cowan (eds), Choice and Consent: Feminist Engagements with Law and Subjectivity (Abingdon, RoutledgeCavendish, 2007); N Gavey, Just Sex? The Cultural Scaffolding of Rape (New York, Routledge, 2005); L Pineau, ‘Date Rape: A Feminist Analysis’ (1989) 8 Law and Philosophy 217. 20  Benton-Greig J, R v S, this collection [69]. 21  Ah-Chong v R [2015] NZSC 83, [2016] 1 NZLR 445 [54]. 22  ibid [57]. 23 Benton-Greig, R v S (n 20) [57]. 24  ibid [60]. 25  R v S (n 11) [15].

R v S—Commentary 431 s 128A should not be interpreted in a way that exposes people to the risk of harm while unable to consent. She finds this interpretation to be wholly consistent with the reforms enacted in 2005. In those reforms Parliament responded differently to the situation of varied vulnerabilities. With regard to very young children, s 132 provides no mens rea defence regarding age, nor a defence of consent. With regard to those child complainants aged between 12 and 16, a defence is only available if reasonable steps were taken to determine age and the young person consented (s 134A). The different policy decisions made as part of the 2005 reform are reflected in the different provisions relating to children and incapacitated adults. Section 128A is a strong statement about how sex with adults unable to consent should be treated under the criminal law. In this feminist judgment, Benton-Greig J undertakes a traditional judicial approach—holding that the law should be interpreted and applied in a manner consistent with Parliamentary intent. In this way, the feminist judgment in R v S gives voice to the activism, advocacy and arguments for attaining real justice through rape law reform that sit behind the 2005 amendments. At the same time, this reimagining of a mid-2015 decision reminds us that agitation for change in public policy is not enough. There is also a need for decision-makers who understand and are sympathetic to the reasons for change.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CRI-2015-404-24 [2015] NZHC 801 BETWEEN

THE QUEEN Appellant

AND

S Respondent

Hearing:

20 April 2015

Court:

Lang J Whata J Benton-Greig J

Appearances:

S Barr and Z R Hamill for Appellant R Mansfield and J Braithwaite for Respondent

Judgment:

23 April 2015

JUDGMENT OF THE COURT The application for leave to appeal is granted, but the appeal is dismissed. REASONS Lang and Whata JJ Benton-Greig J …

[1] [40]

BENTON-GREIG J [40] The respondent, Mr Smolt, was acquitted of six charges of sexually violating his former partner, Ms Camellia, in a judge-alone defended trial in

R v S—Judgment 433

the ­District Court.12 In her decision, the Judge found that Ms Camellia did not consent to the sexual activity on which five of the charges were based. Mr Smolt was acquitted on one charge on the basis that absence of consent was not proven beyond reasonable doubt. [41] On the remaining five charges, applying ss 128A(3) and (4) of the Crimes Act 1961 (the Act) the Judge was satisfied that the available film footage established that Ms Camellia was so affected by drugs during the sexual activity forming the basis of the charges that she could not consent or refuse to consent to that activity. The drug use had caused her to be in a state of semi-consciousness­or sleep at the relevant times. However, the Judge went on to find that the Crown had not proved beyond reasonable doubt that Mr Smolt did not have a reasonable belief that Ms Camellia was consenting. She therefore also acquitted him on those five charges. [42] The Solicitor-General seeks leave to appeal the Judge’s decision on the five charges relating to Mr Smolt’s reasonable belief in consent. I agree that this case raises a potentially significant issue of law and I agree with the majority that leave to appeal should be granted. [43] The question of law before the Court is:13 Can a person who engages in sexual activity with another person believe on reasonable grounds that the other person is consenting when that person is deemed, by statute, to be unable to consent to the activity because she or he is asleep, unconscious or too intoxicated to consent?

[44] The answer to the question must be determined by statutory interpretation. Therefore, I first consider the purpose and meaning of the relevant legislation, and then answer the question currently before the Court. [45] The question of law as originally asked by the Solicitor-General also referred to the Judge’s grounds for finding Mr Smolt’s belief in consent to

12

13

Both parties have name suppression pursuant to the Criminal Procedure Act 2011. I prefer the use of pseudonyms over capitalised letters. In order to reduce the likelihood of selecting a name with which the parties have connection or relationship, I also prefer the use of ‘thing’-based pseudonyms. I will therefore refer to the complainant as Ms Camellia and the respondent as Mr Smolt. By agreement, the question before the Court was amended to this form during the hearing, pursuant to s 299 of the Criminal Procedure Act 2011.

434  Paulette Benton-Greig

be reasonable.14 I am of the view that the subject matter of those grounds has added confusion in this case, and therefore go on to consider the matter of advance consent, and then the other evidence supporting the possible existence of a reasonable belief in consent. [46] Before I do so, I consider it appropriate to acknowledge Ms Camellia, who, although not a party to these proceedings, is also impacted by their outcome. Regardless of whether this Court ultimately finds Mr Smolt criminally culpable, it has been established, and is not challenged, that five of the acts that Ms Camellia complains of did occur and were not consented to. That finding vindicates Ms Camellia’s experience of having been violated. I wish to acknowledge that experience and its effects on Ms Camellia. The purpose and meaning of the legislation [47] The charges were laid under ss 128(1)(b) and (3) of the Act. They provide: 128  Sexual violation defined (1) 

 Sexual violation is an act of a person who­­­­­— (a) rapes another person; or

… (3)

(b) has unlawful sexual connection with another person. Person A has unlawful sexual connection with person B if person A has sexual connection with person B­­­­­— (a) without person B’s consent to the connection; and (b) without believing on reasonable grounds that person B consents to the connection.

Section 128A(3) and (4) are also relevant to the question. They are: 128A Allowing sexual activity does not amount to consent in some circumstances … (3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious. 14

It was: Did the Judge misdirect herself as to whether a complainant’s prior consent to sexual activity taking place while any of the factors in s 128A(3) or (4) are applicable can support a defendant’s reasonable belief in consent?

R v S—Judgment 435

(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.

[48] As this is a matter of statutory interpretation it is also necessary to consider the Interpretation Act 1999. Section 5 of that Act provides: 5

Ascertaining meaning of legislation

(1)

The meaning of an enactment must be ascertained from its text and in the light of its purpose.

The authors of The Laws of New Zealand expand on this provision in a way that I find ­helpful; clarifying that it is the role of the Courts to read and apply ­legislation in the way that is most likely to give effect to its purpose, within the words of the statute as they stand:15 122 Ascertaining legislative intention. The object of all interpretation of a written instrument is to discover the intention of its author as expressed in the instrument. Thus, the object in construing an Act is to ascertain the intention of ­Parliament as expressed in the Act, considering it as a whole and in its context, and in a way that gives effect to its purpose.

[49] What then is the purpose and meaning of ss 128A(3) and (4)? [50] The Solicitor-General argues that the section is a clear statement of ­Parliamentary intent: persons who are asleep, unconscious or highly intoxicated cannot consent to sexual activity. Consistent with that intent, it must be the case that anyone engaging in sexual activity with a person who is known by them to be in such a state cannot reasonably believe that the other person is consenting. The Solicitor-General contends that the purpose of s 128A(3) and (4) is to prevent the sexual violation and exploitation of persons i­ncapable of making a conscious and informed decision to engage in such activity. It would be inconsistent with that purpose to allow a defendant to argue that notwithstanding that the ­complainant could not consent, they had reasonable grounds for believing they did. [51] The Judge, presented with the same issues, though not the argument in this particular form, rejected such a reading of the legislation. Relying on

15

Laws of New Zealand Statutes at [122], references omitted.

436  Paulette Benton-Greig

Kumar v R,16 she held that the element of reasonable belief is a “separate and subsequent” issue from whether Ms Camellia did not consent, and must be assessed on the specific facts of the case. I disagree. [52] Section 128 defines sexual violation but does not define consent. In the absence of a legislative definition judges are required to direct juries on what constitutes consent. In particular, juries must be directed to consider whether consent was voluntary and informed. The common law definition of consent focuses on the informed exercise of free will. As the Court of Appeal held in Isherwood “what will always be essential for there to be valid consent is that a complainant has understood her situation and was capable of making up her mind”.17 [53] Section 128A sets out a number of circumstances or situations in which a person cannot be considered to have consented to sexual activity. It operates to augment s 128 by defining when consent is not given; that is, when ­contextual or personal circumstance constrains a person in such a way that the informed exercise of free will is not possible. It does so in two ways. At the broad level, it demonstrates by example that a person only consents to sexual activity in circumstances where she or he is capable of making a free, conscious and fully informed decision to engage in that activity, and then does so willingly and actively. At the more particular level, it addresses a number of specific problems in the application of the law which may be present at trials for sexual violation. It does so by pre-empting and denying the possibility that consent may occur in any of the identified circumstances. It itemises these specific circumstances as outside the scope of possibility for consenting sexual activity. [54] The list of circumstances in s 128A is not random. It is the result of heavily debated, deeply considered, and no doubt difficult, policy decisions. The section contains a collection of situations in which defendants have, in the past, sought to assert the existence of, or their belief in, consent. Parliament has responded to these examples by clarifying that these are situations in which consent cannot exist.

16 17

Kumar v R [2014] NZCA 58. R v Isherwood CA 182/04; CA 258/04, 14 March 2005 at [35].

R v S—Judgment 437

[55] Sections 128 and 128A have had several iterations since the ­commencement of the Act. In the form enacted in 1961, rape was defined as sexual intercourse without consent, or with consent but obtained under any of three of the circumstances now listed in s 128A—coercion, mistaken identity and mistake as to the nature and quality of the act. [56] In 1985 s 128 was significantly amended in response to research and consultation undertaken at the direction of the then Minister of Justice.18 Changes to the legislation included broadening the acts that constitute sexual violation beyond vaginal rape, the introduction of a degree of gender neutrality, the removal of the marital exemption and the codification of a mens rea requirement. In addition, the three then existing circumstances vitiating consent were moved to a new s 128A and what is now subsection (1) was added to it. Looking at s 128 as it was in 1985 it is clear that the creation of s 128A was a drafting response to how large and unwieldy s 128 had become consequent to the above changes and additions. What that drafting history also demonstrates is that from its earliest formulation the definition of sexual violation (or rape as it then was) incorporated some particular circumstances in which, even if consent was obtained, and relied upon by the defendant, nonetheless the crime of sexual violation was made out. There is nothing to suggest that the intended operation of the section has changed since then. [57] The list of circumstances in s 128A was then expanded by the Crimes ­Amendment Bill (No 2) 2005. The Bill was a result of another period of ­significant social change, ­advocacy and debate. Its stated purpose was:19 To modernise the law relating to sexual offences by placing them in a contemporary context, and reflect recent changes in criminal behaviour as well as changes in social attitudes toward sexual matters.

18

19

Warren Young, New Zealand Department of Justice and Institute of Criminology, Sydney University Law School, Australia Rape Study: A Discussion of Law and Practice, Vol.1 (Department of Justice and Institute of Criminology, Wellington, 1983). Law and Order Committee, Crimes Amendment Bill (No 2) 2005 (Report 104-2) at p 2.

438  Paulette Benton-Greig

[58] Subsections (3), (4) and (5) of s 128A were introduced by the 2005 ­amendments.20 All relate to the issue of capacity to consent to sexual activity. They have in common the intent to protect people who are incapacitated through personal condition or temporary circumstance from being ­sexually acted upon. The definition of consent under the common law already required that a person be able to understand what they were consenting to and be c­ apable of deciding to consent. Notwithstanding that, Parliament considered it necessary to specify particular circumstances—sleep, unconsciousness, intoxication, impairment—in which incapacity is an absolute bar to consensual s­ exual activity. The Members of Parliament who recommended the additions must have agreed that people were insufficiently protected under the then existing definition. [59] The 2005 amendments included a change in the title of s 128A. ­Previously the ­section had been titled “Matters that do not constitute consent to sexual connection”. Rewording the title to “Allowing sexual activity does not amount to consent in some circumstances” alters the meaning of the title to acknowledge that even if permission is obtained when one of the listed circumstances is in operation that does not make any ensuing sexual activity consensual in nature. That is, even if a person gets and relies upon an indication of permission in such circumstances the ensuing activity can still amount to sexual violation. [60] This legislative history demonstrates that s 128A is not just a list intended to merely elaborate what at common law was already defined— the free and v­ oluntary requirement of valid consent. Such reform would not have given effect to the years of research, ­advocacy, consultation and debate that informed the drafting of the section in its current form. To fulfil its legislative purpose s 128A must do more than simply define the boundaries of consent in some contexts. It must protect incapacitated persons from sexual violation and exploitation as Parliament intended. The fact of sleep, unconsciousness or significant intoxication or impairment is the basis of the protection. For one of those facts to be established while also permitting a

20

Subsection (5) is: A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.

R v S—Judgment 439

defendant to argue they had reasonable belief in consent would undermine the purpose of the reform. [61] I therefore agree with the Solicitor-General. The proper construction of the legislation, consistent with its purpose, must be that if one party to sexual activity is incapable of consenting, it cannot be possible that the other party’s belief in consent is based on reasonable grounds. It is not reasonable for a person engaging in sexual activity with a person, knowing that one of the specified circumstances exists, to believe that the person was consenting. Once it has been proved beyond reasonable doubt that a defendant had sexual connection with a person in one of the listed circumstances, knowing that to be the case it will not be possible for a defendant to argue that he or she reasonably believed the complainant was consenting. [62] My reading of the legislation is consistent with case law authority on this point. The Court of Appeal recently considered the effect of s 128A(3) in R v Pakau.21 The Court adopted a similar reading of the section, stating:22 Where a complainant gives evidence of being unconscious or asleep this adds another dimension as potentially s 128A(3) of the Crimes Act comes into play … [In this case, the] evidence that she was asleep or unconscious at some point was unchallenged. If sexual intercourse took place when the complainant was asleep or unconscious she could not have consented and Mr Pakau could not reasonably have considered that she did consent. (Emphasis added)

The Court of Appeal held that once the fact of incapacitated sexual activity is established, both consent and reasonable belief in consent are ruled out. ­Academic commentators agree. Simester and Brookbanks observe that s 128A(3)23 is expressed in absolute terms suggesting that, provided that the complainant is ­unconscious at the time of the activity … any sexual connection occurring while the complainant is asleep or unconscious, will necessarily amount to unlawful sexual connection.

21 22 23

R v Pakau [2011] NZCA 180. At [30]. AP Simester and Warren Brookbanks Principles of Criminal Law (4th ed, Brookers, Wellington, 2012) at 654.

440  Paulette Benton-Greig

The learned authors of Adams on Criminal Law also comment on the absolute nature of the drafting of s 128A.24 [63] In reaching a different conclusion, the majority of this Court refers to the amendments to s 132 of the Crimes Act 1961 made as part of the 2005 reforms. In particular, the majority refers to s 132(4) which says: 132 Sexual conduct with a child under 12 … (4) It is not a defence to a charge under this section that the person charged believed that the child was of or over the age of 12 years.

The majority says that the introduction of this subsection demonstrates that Parliament was aware that it could remove defences based on the defendant’s belief, but did not do so in the case of s 128A. Thus, by implication, Parliament must have intended that defences based on a reasonable belief in consent be available in the case of sexual violation of adults. I disagree. Section 132(4) was drafted in order to address a different kind of mischief from that addressed by s 128A. Parliament wished to make it clear that no kind of belief—whether honest or reasonable—excuses sexual conduct with a child under 12. Nor can a child consent to such contact (s 134(5)). Given the prevalence of child sexual abuse and a history of rationalisations of sexual contact with children, Parliament was clearly stating that there would be no tolerance for it under the criminal law. [64] The legislative changes made in 2005 were intended to increase legal ­protections against sexual exploitation. There was a focus on addressing vulnerabilities that were better understood and more rigorously documented in 2005 than in 1985. They included offending against children and young people, people with significant impairment, and people incapacitated by circumstance. It would be inconsistent with the aims of the reforms to make it a consequence of the enactment of s 132(4) that people prevented by circumstance from consenting to sexual connection remain vulnerable to harm. [65] Counsel for Mr Smolt argued that the interpretation of s 128A put forward by the Solicitor-General would have the effect of reversing the onus 24

Bruce Robertson (ed) Adams on Criminal Law (online edition, Thomson Reuters, 2015) at [CA128A.05].

R v S—Judgment 441

and burden of proof. This is not the effect of giving s 128A the meaning I prefer. The Crown must still prove beyond reasonable doubt that the defendant did not believe on reasonable grounds that the complainant consented to the sexual activity. The Crown may do so by proving beyond reasonable doubt the fact of non-consensual penetration on the basis of one of the conditions in s 128A. The defendant may still offer evidence to raise a reasonable doubt as to the existence of those facts, or as to their awareness of them. Advance consent and belief in consent on reasonable grounds [66] At trial it became evident that the former couple had discussed the possibility of one or other of them becoming unconscious during sexual activity. Ms Camellia gave evidence that she had told Mr Smolt that he was not to have sex with her unless he woke her. Mr Smolt gave evidence that Ms Camellia had told him that she was happy for him to continue sexual activity if she became unconscious, provided he woke her before he ejaculated. The Judge preferred the evidence of Mr Smolt on this point, but held that nevertheless, as a matter of law, it is not possible for a person to consent to future sexual activity. This is a correct statement of established law. Consent must be given at the time the activity in question takes place. It must remain current throughout that sexual activity.25 [67] However the Judge went on to find that advance consent could support a belief on reasonable grounds as to consent. In my view, advance consent may well support an honest belief in consent, but not a reasonable belief. The current wording of s 128 makes it clear that an honest belief in consent is insufficient. [68] The reason why consent cannot be given in advance is that this undermines the ability to revoke consent at any time. The Canadian Supreme Court recently considered this point in R v JA26 McLachlin CJ for the ­majority concluded that:27 Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point. 25 26 27

R v Adams CA 70/05, 5 September 2005 at [43]. R v JA [2011] SCC 28. At [3].

442  Paulette Benton-Greig

And:28 Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question.

Just as a person is not able to consent to sexual activity when they are unconscious, they are entirely unable to refuse or withdraw consent—that is, to change their mind if they had previously agreed to the sexual activity. [69] The facts of this case demonstrate this point. When assessing the grounds on which Mr Smolt may have had reasonable belief in consent, the Judge referred to the sexual activities undertaken by Mr Smolt while Ms Camellia was unconscious as ones in which they had engaged before (presumably whilst both conscious)—“albeit occasionally”. There is some suggestion that, in relation to one or two of the acts at least, “occasionally” may have meant only once previously. There may well be a reason for that infrequency. It may have been a deliberate choice based on a number of variable factors. It is possible Ms Camellia did not want to engage in them again, or only in certain conditions, or had not yet decided. Regardless of the reason, it demonstrates that advance consent to sex cannot support actual, contextualised, contemporaneous choice. [70] In R v JA concerns were raised in the minority judgment that prohibiting advance consent is inconsistent with sexual autonomy.29 ­ ­Examples often proffered are where a person’s dementia is worsening or when asphyxiation during sexual activity is desired. There may be some merit in this argument. But it is not the law as it stands. The balancing of competing public policy considerations and delimiting the conditions of legality is the role of the legislature not the courts. McLachlin CJ’s words in R v JA on this point are prescient:30 In the end, we are left with this. Parliament has defined sexual assault as ­sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to ‘the sexual activity in question’ is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and

28 29 30

At [23]. At [72]. At [65].

R v S—Judgment 443

undermined the law’s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice.

[71] In cases where consent cannot be valid, even if given or obtained, that invalidity must extend to the reasonableness of an accused’s belief. This is as true for situations of advance consent as those of incapacitating circumstances. To hold otherwise would run counter to the principles I have discussed. A person must be capable of consenting in order to consent. Lack of ability to consent cannot, by law, constitute consent. If one party to sexual activity is incapable of consenting, and the other party is aware of that incapacity, they cannot believe on reasonable grounds that consent has been given at the material time. The other evidence supporting the possible existence of reasonable grounds [72] In addition to advance consent, the Judge based her finding of Mr Smolt’s reasonable belief on a combination of factors including the nature of their ­relationship, the frequent, voluntary and informed use of the drug GHB, and the circumstances surrounding the particular sexual activity, ­including Ms Camellia’s behaviour prior to lapsing from consciousness and its similarity to previous consensual sex. [73] This is a Solicitor-General appeal on a point of law and it is therefore not open to this Court to revisit the factual basis for the Judge’s decision. Had this been an appeal on the facts however, I may have reached a different decision.31 [74] Fact-finders are often required to draw inferences from surrounding ­circumstances and particularly in sexual violation cases where little material evidence may be available. As in this case, it is likely to be a combination of factors that led to a particular assessment. However, I am concerned about the potential for cumulative faulty reasoning to wrongfully impact decisionmaking­in such cases and that it may have impacted in this case. As an example, I examine three of the six factors the Judge considered.

31

Subject to the much greater evidential detail available in appeals on the facts.

444  Paulette Benton-Greig

[75] The Judge took account of the “voluntary and excessive drug use … with the intention of having sexual relations” by the parties, their knowledge of its effects and that “the complainant was aware that one of the effects of excessive GHB use was sleepiness and loss of consciousness”. It is difficult to see what else might be inferred from this factor other than a suggestion that because Mr Smolt knew that Ms Camellia was aware that she may lapse from c­ onsciousness, it was reasonable for him to believe that he could lawfully have sex with her in those circumstances. It cannot be that the voluntariness of a complainant’s consumption of intoxicants negates the need for a defendant to believe on reasonable grounds that a complainant is voluntarily consenting to sex. Given the volume of cases involving heavily intoxicated complainants that come before the courts this line of reasoning must be avoided. [76] The Judge also took into account evidence that, at the commencement of sexual activity between the parties, Ms Camellia removed her underwear. In other circumstances that action may provide a reasonable basis for another party to infer willing engagement in the current sexual activity. However I cannot accept that an action undertaken whilst conscious and actively engaging in sexual activity can provide a basis for a belief in consent after that ­person becomes unconscious. A significant aspect of the interaction has changed. [77] Another factor listed was that Ms Camellia’s evidence did not contain complaint about the rigorousness of the sexual acts performed on her whilst she was unconscious. From this the Judge inferred that there “was no indication that that aspect was any different from the sex they had had on the other many previous occasions”. I cannot see how such a fact or the inference supports a reasonable belief in consent. Even if the parties’ sexual interactions are ­frequently rigorous—and there was no evidence on this point— this is not a basis for inferring Ms Camellia’s willing and informed consent to the same s­ exual activity while she was unconscious. [78] The cumulative effect of the inferences drawn from surrounding ­factors, plus the finding of Ms Camellia’s communication of advance consent to sex, led the Judge to find that the Crown had not proved Mr Smolt did not have reasonable grounds to believe Ms Camellia was consenting. I am of the view that Mr Smolt should not have been permitted to argue he had reasonable grounds. However, I am also not convinced that the factors listed by the Judge indicate that he had reasonable grounds. It is

R v S—Judgment 445

p­ ossible that these factors provided the basis of an honest belief in consent by Mr Smolt, but that is not the test. My concern about this list of grounds is that not only do they not withstand scrutiny, but embedded within them are the heuristics that justify and minimise sexual assault. In the first: “she knew the risks so she should accept the outcome”; in the second: “if a woman gets a man going, you can’t expect him to just stop”; and in the third: “sexually adventurous women only have themselves to blame”. Such heuristics must not be reinforced in a trial context, whether as part of a fact-finding process or to support an interpretation of the substantive law. Result [79] I would grant the application for leave to appeal, but I would answer the stated question of law in the negative and allow the Solicitor-General’s appeal.

Benton-Greig J

446 

23 Commentary on R v Sturm ‘Well, What Did You Think Would Happen?’ CASSANDRA MUDGWAY

The Facts and Proceedings in R v Sturm Between November 2001 and November 2002 Phillip Sturm allegedly sexually violated four young men contrary to s 128 of the Crimes Act 1961(NZ). Section 128 defines the crime of sexual violation as (a) the act of a male who rapes a female or (b) the act of a person having unlawful sexual connection with another person; without the consent of that person to the connection, or; without believing on reasonable grounds consent to the sexual connection has been given.1 The crime of sexual violation often turns on the issue of consent, which is a matter left for the finder of fact, usually a jury, to determine. Consent must be informed, genuine and voluntarily given.2 However, reluctant consent is still valid consent.3 The Crown’s case was that Sturm facilitated the violations of the complainants through the supply of class B controlled drugs (including ‘ecstasy’ and ‘speed’) so that the complainants were intoxicated to such an extent that they could no longer consent to sexual activity.4 After a High Court jury trial, Sturm was convicted of ten counts of sexual violation. He appealed against his conviction on the basis of the trial judge, Chambers J’s directions regarding consent and similar fact evidence. The Court of Appeal held that Chambers J did not give a sufficiently specific direction to the jury in relation to consent where intoxication is involved. The directions on consent needed to be tailored to such ‘unusual’ facts as voluntary consumption of drugs leading to intoxication. According to the Court of Appeal, the correct direction to be given to the jury is that in order to convict they would need to be satisfied that:5 (a) Mr Sturm had administered or provided a drug; (b) with the intention that it would induce in the complainant receptiveness to engaging in sexual activity with Mr Sturm; 1 

Crimes Act 1961 (NZ), ss 128(2)(a)–(b), (3)(a)–(b). R v Isherwood (CA 182/04, 258/04, 14 March 2005). 3  R v Herbert (CA 81/98, 13 August 1998); R v Cook [1986] 2 NZLR 93 (CA). 4  R v Sturm [2004] 1 NZLR 570 (CA). 5  ibid [49]. 2 

448  Cassandra Mudgway (c) which Mr Sturm knew the complainant would not otherwise have engaged in, and; (d) the complainant did not take the drug voluntarily and with the awareness that it was likely to lead to sexual activity with Mr Sturm.

Additionally, the Court of Appeal held that Chambers J did not give a sufficiently factspecific direction to the jury on similar fact evidence relevant to the issue of the belief in consent. The Court held that the jury should be satisfied that: on one or more occasions a complainant had, by reason of drugs and alcohol been left with no power of free will so that he was not truly consenting, and that the accused knew this and had intended to bring about that mental state for the purpose of committing sexual acts upon that complainant. As a result, the appeal against conviction was allowed, Mr Sturm’s convictions were quashed and a new trial was ordered. Mr Sturm was subsequently convicted of sexual violation on retrial and a further appeal to the Supreme Court by Mr Sturm was dismissed, having found that there was no evidence of a miscarriage of justice.6

The Issue of Voluntary Intoxication R v Sturm was decided before the Crimes Act was amended to include s 128A(4) which deals specifically with intoxication and consent.7 However, the new subsection was intended to be a codification of the common law relating to sexual violation involving intoxication by alcohol or drugs.8 The two leading cases at that time were R v Isherwood and R v Sturm. R v Isherwood, decided three months before Sturm, was an appeal against a conviction on several counts of sexual violation.9 The complainant had spent an evening in the company of two men. Initially accepting a drink, the complainant later accompanied these men to two bars where she repeatedly rejected their sexual advances. Towards the end of the evening she again accompanied the two men to a motel room with the intention to smoke pure methamphetamine. She was however injected with other drugs (such as methadone) without her agreement. There was subsequent sexual activity which the complainant felt ‘unable to resist’ and she accused the two men of sexually violating her.10 According to McGrath J in Isherwood, consent may still be valid notwithstanding being affected by alcohol or drugs11 and ‘proof that the influence of liquor or drugs has had a disinhibiting effect on the mind of a complainant is not necessarily incompatible with consent. It is all a question of degree’.12 Importantly, McGrath J noted that how the complainant becomes intoxicated is relevant to the assessment of consent, thereby introducing the voluntariness of intoxication as an issue in that assessment.13

6 

Sturm v R [2007] NZSC 63; R v Sturm [2006] BCL 629 (HC). See below (n 21) and accompanying discussion. 8  As per Hon David Cunliffe, Crimes Amendment Bill (No 2) 2004 (NZ), Parliamentary Debates (2004) 615 NZPD 11472, first reading. 9  Isherwood (n 2). 10  ibid [14]. 11  ibid [32]. 12  ibid [34]. 13  ibid [36]; S Croskery-Hewitt, ‘Rethinking Sexual Consent: Voluntary Intoxication and Affirmative Consent to Sex’ (2015) 26 New Zealand Universities Law Review 616, 623. 7 

R v Sturm—Commentary 449 Likewise, the Court of Appeal in R v Sturm placed particular emphasis on the voluntariness of the complainants taking the drugs, as this was relevant to the issue of consent.14 Furthermore, the Court of Appeal held that the complainants’ knowledge about the particular effect of the drugs and their voluntary choice to continue to take the drugs could also impact on the assessment of consent.15 The Court of Appeal specifically rejected the English authority R v Lang where ‘voluntariness’ of consumption was deemed irrelevant to the question of consent.16 Overall, the two leading cases of Isherwood and Sturm draw a distinction between voluntary and involuntary consumption of drugs and/or alcohol as having a bearing on the assessment of consent in cases involving sexual violation and intoxication.

The Feminist Judgment The feminist judgment dissents from the unanimous decision of the Court of Appeal. Croskery-Hewitt J disagrees with the majority’s directions regarding intoxicated consent and similar fact evidence. Additionally, the feminist judgment aims to deconstruct and dismantle rape myths associated with alcohol and drug-facilitated rape, responding to public debates on these issues that were occurring at the time of the original decision.

Alcohol, Drugs and Date Rape In the early 2000s, public concerns were raised regarding, firstly, the consumption of alcohol and its relation to violent behaviour and, secondly, the use of ‘date rape’ drugs.17 More recently, a Ministry of Health report indicated a dramatic rise in alcohol consumption generally across New Zealand.18 Of particular concern is the link between alcohol consumption and sexual violence, with a Ministry of Women’s Affairs study indicating 75% of sexual offence victims/survivors recorded intoxication through alcohol or drugs where intoxication information was collected.19 The same report noted that similar associations between sexual violence and intoxication (of either the victim or offender or both) have been found in research undertaken in other jurisdictions, such as Australia and the UK.20 The link between intoxication and sexual violence became a focal point for political debate and the amendment of s 128A of the Crimes Act sought to address, in particular,

14 

Sturm (n 4) [48]. ibid [49]. R v Lang (1976) 62 Cr App R 50. 17  eg, ‘Jail for Drug Rape of Man’ NZ Herald (Auckland, 20 April 2003); ‘Party Sex Predator Jailed for 12 Years’ NZ Herald (Auckland, 1 April 2005); C Taylor, ‘Barman Accused of Drug Raping Woman’ NZ Herald (Auckland, 15 July 2008). 18  Ministry of Health, Annual Update of Key Results 2014/15: New Zealand Health Survey (Wellington, Ministry of Health, 2015). 19  S Triggs et al, Responding to Sexual Violence: Attrition in New Zealand Criminal Justice System (Wellington, Ministry of Women’s Affairs, 2009) 28. 20  ibid 29. 15  16 

450  Cassandra Mudgway ‘date rape’ scenarios. Issues regarding drug-facilitated rape were debated as part of a Members’ Bill, the Crimes (Drug Rape) Amendment Bill 2003 (NZ), which was subject to its first reading in the House of Representatives as the result of a ballot. Dianne Yates, the sponsor of the Members’ Bill, noted that drug-facilitated rape had been on the rise in New Zealand and was an urgent public policy issue.21 At the same time the Crimes Amendment Bill (No 2) (NZ) (which included s 128A) was being considered by the House and as this Bill covered drug rape, Yates’ Members’ Bill was withdrawn. The amended s 128A(4) provides that ‘[a] person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.’ According to the government, s 128A(4) was a codification of the common law and it was further clarified during the Bill’s first reading that ‘there is no consent when a person has been drugged in order to remove his or her ability to give consent to sexual advances in those circumstances’.22 Consent and intoxication are still prevalent issues today. A particular widely-discussed example occurred during 2014 which became known as the ‘roastbusters’ scandal. Teenage boys, who had publicised their exploits on social media, were accused of intentionally intoxicating young women with alcohol in order to engage in sexual activity with them; thereby, without consent.23 No prosecutions arose from these facts which led to public protests and an Independent Police Conduct Authority (IPCA) inquiry.24 The ‘roastbusters’ scandal revealed a continued lack of understanding of alcohol and consent among New Zealand’s young people.25 The IPCA inquiry revealed that the reported level of intoxication of the complainants was never followed up or considered in relation to whether they had indeed consented as part of the decision by police not to prosecute.26 Overall, in both the social and political context at the time of Sturm ‘date rape’ was seen as an important issue, with particular concern surrounding drug-facilitated sexual assault or ‘drink spiking’. This may in part explain the original judgment’s emphasis on the use of drugs as ‘unusual’ facts. The feminist judgment makes clear, however, that similar intoxication can be achieved through the use of alcohol. Both drugs and alcohol can lead to a state of unconsciousness, unresponsiveness or disinhibition that may preclude consent or otherwise impact the capacity to consent.27 Using intoxication to facilitate rape is not a new phenomenon and not unusual.28 Moreover, on the question of whether there was capacity to consent, the law is concerned with the level of intoxication not the method by which the intoxication came about. Therefore, the feminist judgment disagrees with the majority of

21 

Crimes (Drug Rape) Amendment Bill 2003 (NZ), Parliamentary Debates (2004) 617 NZPD 12621. Hon David Cunliffe (n 8). 23  L Walters, ‘Roast Busters: Police Shocked by Alcohol Use’ Stuff (29 October 2014) www.stuff.co.nz/national/ crime/10675764/Roast-Busters-case-Police-shocked-by-alcohol-use. 24  See, eg, S Boyer, ‘Roast Busters: Women Chain Themselves to Police Station in Protest’ NZ Herald (Auckland, 6 November 2014); Independent Police Conduct Authority, Report on Police’s Handling of the Alleged Offending by ‘Roastbusters’ (Wellington, Independent Police Conduct Authority, 2015). 25  S Ryan, ‘Roast Busters Case: “Where was the Respect?” NZ Herald (Auckland, 29 October 2014). 26  Independent Police Conduct Authority, ‘Roastbusters’ (n 24) [82]. 27  New Zealand Police, ‘Alcohol—Stay Safe When Going Out’, www.police.govt.nz/advice/drugs-and-alcohol/ alcohol-stay-safe-when-going-out. 28  ‘Alcohol Number One “Date Rape” Drug: Study’ NZ Herald (Auckland, 4 April 2008), describing that an Environment Science and Research study revealed that more than 80% of victims in the study were drunk at the time of the assault. 22 

R v Sturm—Commentary 451 the Court of Appeal who favoured a fact-specific direction, considering the type of drug used and the manner of its consumption to be determinative. Instead, the feminist judgment places emphasis on whether the victims were intoxicated to such an extent that they were unable to consent.

The Blame Game: Intoxicated Consent In its judgment in Sturm, the Court of Appeal saw the complainants’ voluntary consumption of drugs as highly relevant to consent. The feminist judgment argues that the manner in which the complainants became intoxicated should be irrelevant to the question of capacity to consent. Croskery-Hewitt J takes this position in order to disrupt rape myths that might prejudice the complainant. As she notes, rape myths arise from socially entrenched gender norms and stereotypes. Such myths stem from the underlying belief that men are the sexual actors and women are the subject of men’s sexual actions.29 These myths can be related to the expected performance of ‘sexual scripts’; intoxicated women are seen as flirtatious and men are expected to positively respond to ‘sexualised interpretations’ of such communicative cues.30 These sexual scripts can support a perception that intoxicated women are ‘asking for it’ and that men ‘cannot help themselves’.31 Women in these circumstances face a catch-22; ‘a woman’s role is to be sexually attractive but not sexually available’.32 Conversely, a man’s consent is ever-present and never questioned.33 Additionally, women are expected to keep themselves safe from sexual assault. Quite often, the onus is on women to avoid ‘dangerous’ or ‘risky’ situations, such as, walking home alone at night,34 drinking too much alcohol,35 or otherwise ‘encouraging’ sexual assault and prompting the accusatory question ‘what did you think would happen?’36 Consequently, if approached by a male acquaintance, it is the woman’s responsibility to communicate her lack of sexual interest.37 ‘Acquaintance rape’ and ‘stranger rape’ are viewed differently, with the former seen as less serious than the latter.38 Women who are intoxicated and raped by a male acquaintance can be seen as, at least partially, blameworthy.39 This is particularly so in instances where there is a lack of physical

29 

L Pineau, ‘Date Rape: A Feminist Analysis’ (1989) 8 Law and Philosophy 217, 225. LC Starfelt et al, ‘Young Australian Adults’ Beliefs about Alcohol’s Role in Sexual Aggression and Victimisation’ (2015) 17 Culture, Health & Sexuality 104, 112; see also H Firth, ‘Sexual Scripts, Sexual Refusals and Rape’ in M Horvath and J Brown (eds), Rape: Challenging Contemporary Thinking (Abingdon, Routledge, 2013) 99. 31  Starfelt, ‘Young Australian Adults’’ (n 30) 113; Pineau, ‘Date Rape’ (n 29) 226. 32  PA Tetreault and MA Barnett, ‘Reactions to Stranger and Acquaintance Rape’ (1987) 11 Psychology of Women Quarterly 353, 356. 33  MA Beres, ‘“Spontaneous” Sexual Consent: An Analysis of Sexual Consent Literature’ (2007) 17 Feminism & Psychology 93, 97. 34  C LeGrand, ‘Rape and Rape Laws: Sexism in Society and Law’ (1973) 61 California Law Review 919, 929. 35  See, eg, the advice offered by the New Zealand Police website (n 27). 36  J Benedet, ‘The Sexual Assault of Intoxicated Women’ (2010) 22 Canadian Journal of Women and Law 435. 37  Tetreault and Barnett, ‘Reactions’ (n 32) 356. 38 ibid. 39  Amnesty International UK and ICM Research, Sexual Assault Research: Summary Report (Amnesty International UK, 2005); S Cowan, ‘The Trouble With Drink: Intoxication, (In)capacity, and The Evaporation of Consent to Sex’ (2008) 41 Akron Law Review 899, 906. 30 

452  Cassandra Mudgway violence.40 The prevalence of these myths is concerning as, contrary to common belief, rape is more often committed by someone who is known to the victim. These rape myths can negatively influence the criminal justice process. Studies have shown that where a complainant has been drinking people are more likely to believe their allegation to be false and to have been made in order to ‘rationalise regretted drunken behaviour’.41 This can harm the chances of a successful prosecution and prevent victims from making complaints in the first place.42 The Court of Appeal’s judgment referenced Finch and Munro’s research into drug assisted rape, which revealed that mock jurors believed voluntariness of consumption was highly relevant to the question of consent and thus arguably supports the above rape myths.43 The Court’s emphasis on the complainants’ voluntary consumption of drugs can be contrasted to how courts have treated intoxication vis-à-vis intent generally. Intoxication is no defence to violence against others—except to the extent that it impacts on the alleged offender’s mens rea.44 To make intoxication indicative of consent feeds into rape myths and may influence juries to believe that complainants consented to sexual activity merely because they voluntarily consumed intoxicants. The feminist judgment explicitly acknowledges this risk associated with the majority’s direction and instead decides that it is the degree of intoxication that should be the focus.

The Silence on Gender: Male Victims of Sexual Crimes It is important to note that male victims of rape are not often the subject of feminist critiques of consent and there has been a general silence as to their existence.45 The constructions of rape and consent view men as physically strong and dominant and women as vulnerable and passive; men as the penetrators and women as the penetrated. Therefore, male victims of rape do not easily fit within this hegemonic masculinity or the socially accepted ‘sexual scripts’ described above.46 Consequently, male victims can be seen as less sympathetic than female victims, particularly if male victims do not ‘fight back’ to reaffirm their dominant gender role.47 The rape myths described above are framed within heterosexual interactions. However, there are rape myths specifically related to male victims underpinned by the same negative gender stereotypes and heteronormative assumptions. Such myths include that ‘men cannot be raped’48 or that the victim must be homosexual,49 or if the victim is homosexual

40  C Gunby, A Carline and C Beynon, ‘Regretting it After? Focus Group Perspectives on Alcohol ­Consumption, Nonconsensual Sex and False Allegations of Rape’ (2012) 22 Social & Legal Studies 87; KM Kramer, ‘Rule by Myth: The Social and Legal Dynamics Governing Alcohol-Related Acquaintance Rapes’ (1994) 47 Stanford Law Review 115. 41 E Finch and V Munro, ‘Juror Stereotypes and Blame Attribution in Rape Cases Involving Intoxicants: ­Findings of a Pilot Study’ (2005) 45 British Journal of Criminology 25. 42  Kramer, ‘Rule by Myth’ (n 40) 131. 43  E Finch and VE Munro, ‘Intoxicated Consent and the Boundaries of Drug Assisted Rape’ (2003) Crim LR 773, 777. 44  R v Kamipeli [1975] 2 NZLR 610 (CA). 45  A Javaid, ‘Feminism, Masculinity and Male Rape: Bringing Male Rape “Out of the Closet”’ (2016) 25 Journal of Gender Studies 283, 285. 46  ibid 289. 47  ibid 288. 48  ibid 287. 49  L Stemple, ‘Male Rape and Human Rights’ (2008–2009) 60 Hastings Law Journal 605, 631.

R v Sturm—Commentary 453 that they must have ‘enjoyed it’ or ‘asked for it’.50 These myths can also adversely affect successful prosecutions and prevent victims from coming forward.51 In fact, homosexual victims of rape are seen as the least sympathetic victim or the furthest from ‘real rape’.52 Unlike the Court of Appeal, the feminist judgment provides pseudonyms for the four men who were sexually assaulted by Mr Sturm. By providing names, the feminist judgment draws attention to the humanity of the victims which is often lost when victims are only identified by initials. Although the complainants in Sturm were male, the feminist judgment does not draw attention to their gender or sexual orientation. Since the legal structure of consent is heteronormative and envisions dominant and submissive power relations, the same construct is applied to non-heterosexual sexual interactions.53 Male rape, as with female rape, is tied to the performance of harmful masculinities and heteronormativity through the use of male violence.54 As a result, a feminist perspective on male rape is insightful. R v Sturm was featured prominently in the media55 and reports focussed on the drug rape aspect of the case, and particularly on the gender of the complainants.56 Explicitly, the media noted that the complainants insisted that they were heterosexual.57 The jury directions in Sturm also emphasised the assertion of the complainants’ sexuality and listed this as forming part of the similar fact evidence. By drawing attention to this assertion, and to the complainants’ sexuality in particular, Chambers J could be seen as reinforcing male rape myths, undermining the credibility of homosexual complainants and erasing the possibility of varied gender identities. The feminist judgment seeks to address this risk by suggesting that the fact that the complainants insisted that they were heterosexual is not relevant to the plausibility of the accounts of all complainants.

The Question of Consent: Future Developments At the time of writing, the question of whether consent must be actively expressed is on appeal in the Supreme Court.58 This legal development could have significant impact in

50 

ibid 631. Javaid, ‘Feminism, Masculinity and Male Rape’ (n 45) 287. 52  R Graham, ‘Male Rape and the Careful Construction of the Male Victim’ (2006) 15 Social & Legal Studies 187, 199; K Doherty and I Anderson, ‘Making Sense of Male Rape: Constructions of Gender, Sexuality and Experience of Rape Victims’ (2004) 14 Journal of Community and Applied Social Psychology 85, 98; I Anderson, ‘Explaining Negative Rape Victim Perception: Homophobia and the Male Rape Victim’ (2004) 10 Current Research in Social Psychology 43, 50. 53  K Corteen, ‘Beyond (Hetero)Sexual Consent’ in M Cowling and P Reynolds (eds), Making Sense of Sexual Consent (Aldershot, Ashgate, 2004) 179. 54  Javaid, ‘Feminism, Masculinity and Male Rape’ (n 45) 288. 55  ‘Restaurateur Jailed for Sex Attacks’ TVNZ (18 December 2003) tvnz.co.nz/content/243960/2591764/article. html; ‘Stupefying Case Back in Court’ NZ Herald (Auckland, 24 October 2007); ‘Sex Offender Faces Customer Ban’ NZ Herald (Auckland, 15 June 2008); ‘Sturm Sentenced to Nine Years’ TVNZ (26 May 2006) tvnz.co.nz/ content/726323/4202557.xhtml. 56  See, eg, ‘Restaurateur Jailed for Sex Attacks’ (n 55); ‘Stupefying Case Back in Court’ (n 55). 57  ‘Stupefying Case Back in Court’ (n 55). 58  Christian v R [2016] NZSC 170. 51 

454  Cassandra Mudgway cases where there is silence on consent or a failure to resist (which would not be ‘actively expressed consent’).59 Such an approach may challenge harmful rape myths, especially those associated with ‘sexual scripts’. By reversing the inquiry from searching for an absence of a ‘no’ and instead looking for an indication of a ‘yes’, women in particular may no longer be viewed as inherently passive subjects of men’s sexual acts.

59 

Christian v R [2016] NZCA 450.

R v Sturm

Court of Appeal  Wellington 29 September 2004; 1 June 2005 Anderson P, Hammond, William Young and Croskery-Hewitt JJ

5

CA 28/04 & 101/04 10

CROSKERY-HEWITT J. The appeal [116] Jaime Thompson, Tai Kahui, Connor Smith and Daniel Wilson were each young acquaintances or employees of Philip Sturm. I have used pseudonyms for these young men to protect them from identification. Mr Thompson, Mr Kahui, Mr Smith and Mr Wilson each reported sexual violations by Mr Sturm between November 2001 and November 2002 while under the influence of alcohol, as well as drugs supplied by Mr Sturm. They each independently described a pattern of events whereby Mr Sturm facilitated their intoxication to such an extent that they were incapable of giving consent to sexual activity, and he then sexually violated them. [117] Mr Sturm argued that all but two of the sexual activities concerned were consensual (the remaining two incidents were denied). At trial Mr Sturm was convicted by the jury on 8 counts of sexual violation, one count of attempted sexual violation and one count of indecent assault, against each of which he now appeals. The majority, whose judgment I have seen in draft form, allows Mr Sturm’s appeal against conviction on the basis of deficiencies in the trial Judge’s directions as to the issue of consent and the use of similar fact evidence. I agree with the majority as to the meaning of “stupefy”. I do not agree that the trial Judge’s directions as to the issue of consent and the use of similar fact evidence occasioned any miscarriage of justice. I would dismiss the appeal.

15

20

25

30

35 The context of the consent enquiry [118] As with most of the sexual violation cases that come before the courts, this case turns on whether the complainants consented to the sexual acts in question. As is also unfortunately far too common, the charges concerned predatory sexual behaviour towards heavily intoxicated and vulnerable young complainants. In addition to the alcohol consumed 40 by the complainants, the appellant had supplied each of them with ecstasy and in some cases methamphetamine or speed. The judgment of the majority finds that the fact that the complainants voluntarily consumed these intoxicants is relevant to whether they consented to sexual activity. [119] I respectfully disagree with the majority’s finding that the means of a complainant’s 45 intoxication is relevant to their consent. I would also note that a focus on the “voluntariness” of a complainant’s intoxication risks engaging many of the “rape myths” relied upon all too often by defence counsel and society at large to discount the experiences of survivors of sexual violence: the myth that sexual violation when voluntarily intoxicated to the point of being unable to consent is not “real rape”; the myth that, when the aggressor 50

456  Sarah Croskery-Hewitt and the complainant were both voluntarily intoxicated, “real rape” cannot have occurred; and the myth that many complaints of sexual assaults from intoxicated people are in fact an attempt to reclassify regretted sexual experiences as assaults. While the more typical scenario in which these myths are deployed involves a female victim and male aggres5 sor, studies have indicated that belief in myths concerning female rape victims supports a belief in similar myths concerning male victims (Cindy Struckman-Johnson and David Struckman-Johnson, “Acceptance of Male Rape Myths Among College Men and Women” (1992) 27 Sex Roles 85 at p 97). [120] These myths discredit the experiences of survivors of sexual violence by construct10 ing their behaviour in choosing to drink or take drugs as reflecting their sexual availability. Complainants report that the focus upon their prior behaviour during the court process can feel like a second violation of their sexual autonomy (Elisabeth McDonald, “‘Real Rape’ in New Zealand: Women Complainants’ Experience of the Court Process” [1997] 1 Yearbook of New Zealand Jurisprudence 59). The prevalence of these myths and their 15 continued reinforcement in the court process act as a barrier to the reporting of sexual assaults and afford only the morally virtuous the protection of the law. This court must be acutely aware of the insidious power of these myths and reject them in our reasoning. Directions on consent [121] I agree with the majority that a jury direction on the relevance of intoxication 20 to the issue of consent was required. However, I do not agree that the direction should have focused on the type of drugs taken or the manner of their consumption. The proper question is whether the complainant in fact consented to the sexual acts in issue. How a person came to be intoxicated and how informed they were of a drug’s effects is irrelevant to whether they consented at the relevant time. Instead, the focus should be on the degree 25 of intoxication that is compatible with consent.

30

35

40

45

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“Voluntariness” of intoxication [122] Previous judgments of this Court have affirmed that consent must be genuine, informed and freely and voluntarily given, and that the time at which consent is to be assessed is the point of sexual activity (R v Brewer CA516/93 26 May 1994). Similarly, the English Court of Appeal in R v Lang (1975) 62 Cr App R 50 took the view that the “voluntariness” of the prior consumption of an intoxicant is irrelevant to consent. To take into account the “voluntariness” of a victim’s intoxication when assessing consent would risk treating the voluntary consumption of intoxicants as indicative of consent to all subsequent sexual activity. [123] How an intoxicant is taken, whether voluntarily or involuntarily, has no bearing upon the effects it has upon one’s cognitive abilities. Any purported consent to sex given when significantly intoxicated lacks the necessary voluntary and informed qualities. In my view, a direction to the jury that it may only convict where the complainant was involuntarily intoxicated suggests that where a complainant knew of the likely disinhibiting effects of a drug, the voluntariness of their intoxication may determine whether they consented. A complainant’s choice to become intoxicated could operate as a type of partial “advance” consent to sex, which is wholly inconsistent with the requirement that consent is assessed at the time of the sexual act. [124] The possibility of “advance” consent to sexual activity by means of voluntary intoxication effectively frames consent as something given in “blanket” form on behalf of one’s future impaired self. This is incompatible with the key characteristics of consent; that it is genuine, informed and freely and voluntarily given. Whether one consents is a highly contextual decision. A sober person cannot foresee the context and nature of any sexual activities that might arise when they are intoxicated. Their consent therefore cannot be

R v Sturm—Judgment 457 properly informed and genuine. Due respect for individuals’ sexual autonomy requires that they retain the ability to revoke their consent. But “advance” consent precludes this so cannot be said to be fully free and voluntary. [125] Regrettably, the belief that a voluntarily intoxicated person is somehow “responsible” for their sexual violation remains common. All too often, public discourse around 5 sexual violence places responsibility on victims for modifying their behaviour in order to avoid the danger posed by sexual aggressors. Such thinking clearly has no place in this Court’s treatment of consent; any notion of prior “fault” on the part of a victim in choosing to become intoxicated has no relevance to the fact of consent. The law must protect the vulnerable, rather than facilitate their exploitation, irrespective of whether a victim’s 10 vulnerability was a result of their own actions. [126] The majority questions whether an absence of consent by the victim is likely to be mirrored by an absence of mens rea by the perpetrator if both are equally intoxicated. With respect, I cannot agree that no violation has occurred in such cases. There are obvious policy reasons why those who sexually violate others while intoxicated should not avoid 15 conviction. Voluntary intoxication should not be permitted to excuse violence towards others. Accordingly, it is the fact of intent that is determinative and intoxication is not a general defence to criminal charges (R v Kamipeli [1975] 2 NZLR 610). Given the prevalence of intoxication on the part of both victims and perpetrators in cases of sexual violation, to take as a starting point that mutual intoxication often renders a victim “unrapeable” would 20 be inappropriate. It places a burden on victims not to become intoxicated lest they fall prey to sexual aggression, meanwhile excusing the actions of the intoxicated aggressor. Nature of the intoxicant [127] Using a victim’s intoxication against them in order to facilitate their violation is nothing new. I cannot see that the nature of the behaviour of sexual aggressors who deliberately target alcohol-intoxicated victims is so different from that of those who employ other intoxicants (such as “date-rape” drugs) to achieve the same ends. These are but different degrees of the same pattern of predatory sexual behaviour, so do not justify a different approach. [128] Further, the effects of “date-rape” drugs have not been demonstrated to be so different to the effects of severe alcohol intoxication (or intoxication by means of other types of drug) so as to justify a different approach. While the pharmacology of certain “date-rape” drugs may ensure that a severe state of impairment is quickly reached, the same degree of impairment may occur with other intoxicants. Alcohol too may cause disinhibition, memory impairment, “blackouts” and unresponsiveness. Heavy alcohol consumption will similarly preclude the ability to form an informed and voluntary consent. [129] For the intoxicated victim, the nature of the specific intoxicant affecting them bears little upon the severity of the violation they experience when subjected to sexual acts to which they are incapable of consenting. Irrespective of the intoxicant consumed, the suborning of the will of another through their incapacitation must be viewed seriously. Treating the advent of “date-rape” drugs as a uniquely serious development indicates that the experiences of other intoxicated victims of rape by means of other drugs are somehow less likely to amount to sexual violation. [130] The drugging of a complainant with “date-rape” drugs is, of course, relevant to the issues to be decided in establishing sexual violation. The ability of such drugs to preclude capacity to consent is generally swift and complete. Their administration will typically bar the suggestion that an alleged offender reasonably believed that there was consent, and may also be an aggravating feature at sentencing stage. The involuntary administration of “date-rape” drugs will of itself also amount to an additional offence (for example,

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458  Sarah Croskery-Hewitt ss 197 or 200 of the Crimes Act 1961). But the nature of the drug itself cannot sensibly be seen to bear upon the question of consent; rather, it is the level of intoxication and the specific effects experienced that determine a person’s capacity to consent. 5

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An appropriate jury direction [131] I do agree that a clear direction regarding the relevance of the complainants’ intoxication to whether they consented was required. However, the warning I prefer would focus not upon the means of intoxication but on the degree of intoxication which may be compatible with the presence of consent. The jury would have also benefitted from a direction as to how consent could validly be communicated in light of the complainants’ intoxication. [132] Under the heading “Matters that do not constitute consent to sexual connection”, s 128A of the Crimes Act 1961 makes clear that failure to protest or offer physical resistance to sexual connection does not amount to consent (see also R v Fotu CA50/95). As summarised in a direction upheld by this Court, “What it boils down to is this—consent is something positive” (R v C [1995] 2 NZLR 330). [133] As noted in a recent decision of this Court that was similarly concerned with an intoxicated complainant (R v Isherwood CA258/04, 14 March 2005 at para [36]), the jury must assess the subjective state of mind of the complainant at the time of the sexual act. ­However, this is not the end of the inquiry. Section 128A makes it clear that mere submission will not amount to consent. Inferring the possibility of consent from submission, combined with some circumstances which preceded the sexual contact, would be similarly problematic. Permitting antecedent behaviour to be determinative of consent would be counter to the requirement that consent is to the specific act in question and is to be assessed at the time of the act. Some positive manifestation of a consenting state of mind is therefore required. [134] Where a person’s capacity to consent is impaired by intoxication, to such an extent that their ability to make a free and informed decision is affected, the quality of the expression of consent required will differ. Where a complainant is heavily intoxicated, there is a risk that an apparent consent may not in fact meet the requirement to be free and voluntary, so clearer communication is required to amount to genuine consent. The jury should therefore have been directed that, in considering whether the Crown had proved beyond reasonable doubt that each complainant did not consent, they may have regard to the level of the complainant’s intoxication. [135] In summary, a jury in a case such as the present would be assisted by a direction which incorporates the following elements: (a) A person can only consent to an act through positive words or conduct; (b) A person cannot consent to an act if they are so affected by drugs or alcohol as to be incapable of giving genuine, voluntary and informed consent; (c) The clarity required of any purported communication of consent will be affected by a person’s level of intoxication; and (d) A person is not to be regarded as having consented to a sexual act just because they voluntarily consumed a drug with awareness of the likely effects of the drug.

45 [136] From this perspective, any deficiencies in the trial Judge’s direction can only have been of benefit to Mr Sturm. Directions on similar fact evidence [137] Mr Sturm contends that the trial Judge erred in failing to hold that similar fact ­evidence could not properly be used by the jury and to direct the jury accordingly. For 50 each of the counts to which the similar fact evidence was relevant, Mr Sturm admitted the

R v Sturm—Judgment 459 c­ onduct in question. The sole issue was whether the complainants consented to it, or whether Mr Sturm reasonably believed they consented. The majority finds that the Judge’s direction was unduly prejudicial and indicated no logical relevance to any matter in issue. In my view, the direction did not give rise to a miscarriage of justice. [138] The trial Judge, Chambers J, framed the issue of similar fact evidence as follows: “[30] When a court is considering a particular charge, evidence about what an accused is said to have done at other times is normally deliberately excluded and that is because what an accused might or might not have done on one occasion is by and large irrelevant to what he may have done on another occasion. But there are exceptions to that general rule. In this case, there are four complainants who say that Mr Sturm offended against them. The Crown submits to you that the events they have each described have significant similarities, and that was really the point of Mr Hamlin’s 12 points. The Crown notes that the four complainants are all young men, all roughly the same age. All four say they are heterosexual. Some of them, you may even have thought, looked alike. All four are approached by Mr Sturm, the Crown says, and are invited back to his office. In each case, a legitimate non-sexual reason is given for going to that office. None of them is invited to the office for the purposes of a sexual encounter. They get to the office. The visits, the Crown says, all take place, it would seem, in the early hours of the morning. At that time of the day or night, the office is private. It has a magnificent view over the city, it is said. It would seem on each occasion drinks are offered. Mr Sturm, at least on some of the occasions, puts on music. Some assert the lights are dimmed, or turned off. This does cause some of the invitees to question the purpose of the visit and to question Mr Sturm’s motive and sexuality. Some question Mr Sturm about that. But significantly, the Crown says, in no case is there any discussion about the possibility of sexual activity between Mr Sturm and any of the complainants before drugs are taken. That does seem to be common ground, that there was no discussion of sexual activity before drugs were taken. The Crown says that the use of alcohol and drugs is a common theme applicable to every incident before you. These were, the Crown says, the agents of seduction. The Crown says that it is extremely significant that none of the sexual activity with any of the complainants took place without drugs having first been taken. In every instance with every complainant, drugs preceded the sexual activity. The Crown points to the fact that in each case, it was Mr Sturm supplying the drugs and that he never asked any of the complainants to pay for them, even though he had never met two of them before and another of them he knew, but barely. The Crown says drugs aren’t cheap. According to Mr Sturm, each ecstasy pill cost him about $60. A bag of methamphetamine about $100, and yet, the Crown says, none of these young men is ever asked to pay for the drugs. And then there’s the sex itself. Mutual masturbation on a number of occasions and oral sex, generally taking place on the floor of his office or in the toilets next to his office. In Mr D’s case, of course, the sexual activity continued later at Mr Sturm’s home.

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[31] And finally, each of the four complainants come to the police and complain about having been sexually violated by Mr Sturm. [32] Well, what do you make of those alleged similarities? Before you were to use 45 the incidents involving the other complainants with respect to considering this charge involving Mr A, you would need to be satisfied about two things. First, it is for you to decide whether you accept the Crown submission; whether you think there are those similarities in the four accounts, and whether those similarities are significant. And secondly, you must be satisfied that the complainants have not collaborated, got their 50

460  Sarah Croskery-Hewitt heads together, to concoct false but matching allegations. The four, when asked, each claimed that they did not know what the others had alleged. Indeed, they claimed not even to know who the other complainants were. Well, that’s for you to assess. 5

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[33] If you are satisfied about those two things, then it would be open to you to conclude that the evidence of one complainant about what happened to him is so related to the evidence of the other complainant about what happened to him, that the evidence of the first provides support for the other, and vice versa. In other words, their evidence on those matters points to a pattern of conduct which may reinforce or corroborate what each of them says. [34] If, however, you are not satisfied that there is sufficient similarity between the versions of events to provide that degree of mutual support, then you must guard against any tendency to think along the lines of, well, in any event, Mr Sturm has a tendency to behave badly so he must be guilty. That would be false logic and obviously unfair. [35] So if the two preconditions I have mentioned are met, if they are met, you could consider then, when weighing up whether to believe Mr A or not, what the other three assert happened to them. If you were to conclude that Mr Sturm was the sort of man who was prepared to press on with sexual intimacy regardless of whether the other person truly consented with one complainant, then you may consider that it makes more likely the proposition that he was also prepared to press on without consent with another complainant. But that is a matter for you.”

[139] The relevance of the similar fact evidence was put to the jury as a two-stage assess25 ment; first, they were required to determine whether the similarities alleged by the Crown were in fact present and whether they were significant. Secondly, if they determined there were such similarities, they could consider that Mr Sturm’s lack of belief in consent in the case of one complainant “makes more likely the proposition that he was also prepared to press on without consent” with another complainant under those similar circumstances. 30 This approach is broadly consistent with the direction set out in R v Sanders [2001] 1 NZLR 257:

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“[20] The jury should be told that if they find the necessary distinctive similarity in the accounts of the complainants, they may use the evidence given by the other complainant(s) to help them in deciding whether the charge or charges against the accused in respect of the complainant whose case they are considering is established beyond reasonable doubt.”

[140] I too find deficiencies in the direction given, though only of a kind which would be of assistance to Mr Sturm. In explaining the level of similarity between each of the 40 complainants’ circumstances, the direction cited the Crown’s contention that, for example, the complainants “say they are heterosexual”, may look alike, were made to perform similar sexual acts, were assaulted in the early hours of the morning and were assaulted in Mr Sturm’s office. Chambers J then directed that to make use of the similar fact evidence the jury “would need to be satisfied … [that] there are those similarities in the four accounts”. 45 However, many of these arbitrary and highly specific similarities are not strictly relevant to the pattern of drug-assisted opportunistic sexual aggression which the similar fact evidence tended to establish. For instance, had one complainant not insisted they were heterosexual I cannot see that this would be relevant in terms of the pattern of behaviour to be established. The direction should have made it clearer to the jury that all of these similari50 ties need not be present for sufficient similarity to be found.

R v Sturm—Judgment 461 [141] Contrary to prevailing assumptions, the majority of sexual offending is perpetrated by victims’ acquaintances, rather than strangers. Recidivist acquaintance rapists may not display highly distinctive and unusual patterns of behaviour, and their offending may be opportunistic in nature. Thus, if unusual (and arbitrarily selected) features are required to establish sufficient similarity, similar fact evidence may seldom be admissible in acquaintance rape cases, leaving the victims of acquaintance rape with fewer protections than those who experience “stranger rape”. [142] Chambers J directed that the jury could have regard to similar facts in considering intent in respect of each count, however it has been argued that his direction did not sufficiently explain how the one occasion could logically inform another. It is well established that similar fact evidence must establish more than “mere propensity” to be admissible (R v Hsi En Feng [1985] 1 NZLR 222 at p 225), thus a reasoning process should not be invited that because Mr Sturm may have done something bad on one occasion he necessarily did so on another occasion. I do not consider that the direction gives rise to any real risk that the jury used the evidence in such an impermissible way. [143] Chambers J clearly framed the relevance of the similar fact evidence broadly, as going to the plausibility of the accounts of each of the complainants. The jury was invited to reason that “the evidence of one complainant about what happened to him is so related to the evidence of the other complainant about what happened to him, that the evidence of the first provides support for the other, and vice versa”. The Judge explained that the evidence may point to “a pattern of conduct which may reinforce or corroborate what each of [the complainants] says”, and could be used in deciding “whether to believe [a complainant] or not”. In this way, the evidence was framed as being relevant to the credibility of the complainants’ accounts, so could be used by the jury in weighing up their accounts against the plausibility of Mr Sturm’s purported belief in consent. [144] Such a line of reasoning does not rest upon the impermissible assumption that because Mr Sturm had done something bad on one occasion he necessarily did so on another occasion. Instead, it rests upon “coincidence” reasoning; the jury could have reasoned that Mr Sturm’s defence rested on an implausible coincidence that four complainants would independently concoct similar stories following apparently consensual sexual activity. Further, the mutual support the accounts provided for one another helped establish the series of facts in the context of which the objective reasonableness of Mr Sturm’s purported belief in consent had to be assessed. This is not a matter of Mr Sturm’s general propensity to offend, but rather the establishment of the fact of a pattern of behaviours in the context of which a reasonable belief in consent seems implausible. [145] The similar fact evidence was relevant to the credibility of the various accounts. A narrowly framed direction would have overlooked the relevance of the evidence to the plausibility of the account of each of the complainants. Equally, a highly fact-specific direction would risk incorporating unnecessary elements that are not essential for sufficient similarity to be found. Mr Sturm need not have intended to bring about a stupefied state for the purpose of committing sexual assaults in the case of each complainant. A pattern of exploiting the complainants’ intoxication, without a clear prior intention to bring about that state, may still have provided sufficient similarity. In the same way, requiring that each complainant reached a particular level of intoxication would be unnecessary. A complainant plausibly could have retained a degree of free will but their circumstances could have been sufficiently similar to that of the others’ to warrant consideration. A high degree of fact specificity would be unhelpful and likely to distract the jury from the proper enquiry. [146] A further concern arose about the danger of impermissible propensity reasoning as a result of the language—“sort of man”—used at paragraph [35] of the direction as set out above. While perhaps not ideal, this language when read in context was not suggestive of a

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462  Sarah Croskery-Hewitt

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general propensity to offend and certainly not to such an extent so as to amount to a miscarriage of justice. [147] The sentence in question here—concerning whether “Mr Sturm was the sort of man who was prepared to press on with sexual intimacy regardless of whether the other person truly consented with one complainant”—refers to a finding about Mr Sturm’s behaviour in respect of a specific complainant. His behaviour on this occasion may then be used to support a conclusion that it “makes more likely the proposition that he was also prepared to press on without consent with another complainant”. The characterisation of Mr Sturm as a specified “sort of man” was linked to the specific circumstances of the complaints in issue, rather than indicative of a propensity to offend more generally, and the phrasing “makes more likely” again characterises this as a line of “coincidence” reasoning. The jury had been directed to establish the requisite elevated level of similarity before using the complainants’ evidence as mutually supportive and to be sure that the evidence “points to a pattern of conduct which may reinforce or corroborate what each [complainant] says”. This was sufficient to guard against the danger of impermissible general propensity reasoning. [148] Nor do I find the trial Judge’s lack of a general warning against propensity reasoning determinative. It was noted that the warning given only applied if the jury were not satisfied that the evidence of the complainants provided mutual support. However, Chambers J was simply guarding against the possibility that the jury would be influenced by the evidence concerning other complainants if insufficient similarities were found to make use of the evidence. This was a reminder that, if the jury did not find the alleged similarities between the incidents, Mr Sturm’s poor behaviour on one occasion was irrelevant to the determination of the charges and should be put to one side. Without the necessary similarities, one occasion could not assist with the determination of another. The proper purpose of the similar fact evidence (assuming sufficient similarity was found) was sufficiently clear. While a broader warning against propensity reasoning may have been beneficial, I am satisfied that its absence did not invite the jury to adopt such reasoning. Result [149] For these reasons, I would dismiss the appeal against conviction. Appeals allowed.

24 Commentary on Vuletich v R When is Sexual Violence Against Adults Unusual?: The Admissibility of Propensity Evidence ELISABETH McDONALD

The Court of Appeal’s Decision The facts of Vuletich v R1 raise traditional arguments about the admissibility of similar (bad) conduct by a defendant—as well as the application of the balancing test for admissibility in s 43 of the Evidence Act 2006 (NZ): does the evidence have ‘a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant’? Brendon Vuletich was charged with two rapes of a woman he knew (as well as charges of male assaults female, sexual violation (by digital penetration), indecent assault and entering a dwelling with intent). The alleged offending took place between 10 November 2008 and 19 January 2009. According to the ‘Auckland complainant’, as she is identified in the Court of Appeal’s decision, they had met through a dating website. After about two months she attempted to end the relationship, following a number of occasions of non-consensual sex—and this abusive conduct only got worse after she tried to break up with Vuletich. His pattern of behaviour with her was to turn up at her home uninvited and unannounced and press her to have sex with him, sometimes gaining access by removing louvres from her bathroom window when she was asleep in bed. Counsel indicated on appeal that the likely defence would be consent.2 Vuletich was also charged with the sexual violation (by digital penetration) of the ‘Paihia complainant’. He, a friend and his cousin had booked into a communal room (with two bunks and one single bed), in a backpackers’ hostel on 30 December 2008. Also in the room were the complainant and her female cousin. The two groups, short of occasional conversations, did not socialise together while staying at the hostel but undertook their own activities while in Paihia. The Paihia complainant alleged that at about 4am on

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Vuletich v R [2010] NZCA 102. ibid [32].

464  Elisabeth McDonald 3 January 2009, Vuletich got into her bunk. She was asleep but woke up, screamed and yelled at Vuletich when he digitally penetrated her vagina. He accepted getting into her bunk, but denied any sexual activity. The Court of Appeal unanimously ruled that the propensity evidence about the Paihia allegations was inadmissible at Vuletich’s trial concerning the offending against the ­Auckland complainant—and the order for joinder made by Judge Sharp in the District Court was set aside. There were three judgments, with the main judgment delivered by ­Glazebrook J, and shorter judgments by Baragwanath J and Randerson J addressing a specific point about the possibility of applying a ‘sliding scale’ analysis regarding probative value to propensity rulings. That aspect of the decision is not considered in this discussion, which focusses on the approach of Glazebrook J. While the definition of propensity evidence was not at issue in the case, the application of s 43 (and the extent to which the earlier common law on propensity evidence remained applicable) was squarely before the Court. This occurred at a time when the Evidence Act had only recently come into force (on 1 August 2007) and was the subject of significant appellate court consideration, in particular in relation to the identification and representation of the ‘issue in dispute’ under s 43(2), and the consequential inquiry into the probative value of the evidence (s 43(3)) as balanced against the prejudicial effect (s 43(4)). Vuletich is one of the early Court of Appeal decisions under the Act in which the crafting of the inquiry in s 43(2) was seen as critical—how broad a statement of the issue to be decided is permissible? The case also provided an opportunity for the Court to consider two of the factors to be taken into account in assessing probative value in s 43(3): ‘the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried’ (s 43(3)(c)); and the extent to which the propensity evidence and the charges are ‘unusual’ (s 43(3)(f)). The Court cited with agreement the approach in R v Healy3—that the starting position to consider the admissibility of this type of propensity evidence after 1 August 2007 is s 43, not the common law, and that although the common law may be referred to, ‘the opportunity to have a clean slate in this area by relying on the statutory test alone should be grasped’.4 A further statement in Healy was also cited as being of relevance: that propensity evidence may be used for the purposes of establishing lack of consent. That is, a defendant’s propensity to undertake sexual activity without an honest or reasonable belief in consent could be used ‘to support the evidence of a complainant on the basis of the improbability of similar lies from multiple complainants (and thus to support a particular complainant’s credibility)’ (emphasis added).5 When applying s 43, however, Glazebrook J rejected the approach of Judge Sharp when stating the nature of the issues in dispute. In her view, referring to the credibility of the complainants as the basis of the Crown case ‘is too broadly phrased’.6 Her Honour noted that the defence approach with regard to the Auckland complainant would be that the interaction was consensual (at least as far as the rape and sexual violation charges were 3 

R v Healy [2007] NZCA 451, (2007) 23 CRNZ 923 [46]. Vuletich (n 1) [25]. 5  ibid [29]. 6  ibid [31]. 4 

Vuletich v R—Commentary 465 concerned), whereas Vuletich claimed the Paihia incident was either accidental or did not occur.7 Despite these differences, Her Honour stated: [35] While the main issue with regard to the two sets of offending differs, however, I consider that at a general level the issue is the same with regard to both sets of offending: whether Mr Vuletich indulged in sexual acts without consent and without reasonable belief in consent. At that general level, the fact that Mr Vuletich may have acted without a belief in consent on one occasion tends to show that it might be more likely that he offended sexually on another occasion. [36] It would thus be legitimate for the jury to consider that the Auckland incidents of sexual offending make it more likely that the Paihia incident actually occurred (and was not accidental). It would also be legitimate for the jury to consider that the Paihia incident tends to show that it is more likely that the Auckland incidents of sexual offending occurred without Mr Vuletich believing in consent (or that he was indifferent to consent). [37] Further, it might be thought a very unhappy coincidence for Mr Vuletich to be wrongly accused of two sets of sexual offending in such a short timeframe where there is, as noted below, no possibility of collusion between his alleged victims.

The propensity (Paihia) evidence could therefore be used (if admitted) by the jury to find that it was more likely that Vuletich did not believe that the Auckland complainant was consenting, rather than using the Paihia evidence to bolster the credibility of the Auckland complainant. (And in the case of a joint trial, evidence of the Auckland allegations would be used to support the likelihood of the Paihia incident occurring and not being accidental.) The factors in s 43(3), which go to assessing probative value, given the issue in dispute, were then considered. In favour of probative value were the close connection in time and lack of collusion,8 but Glazebrook J noted the fact there were only two complainants and the differences in the type of offending meant the probative value of the evidence was low. In particular, one complainant had been in a relationship with Vuletich and one was a passing acquaintance; the Auckland complainant had been equivocal at times regarding consent, while the Paihia complainant was immediately and loudly disgusted; and while Vuletich unlawfully entered into the Auckland home, the Paihia offending ‘involved an opportunist taking advantage of proximity in a hostel room’.9 Glazebrook J also gave weight to the fact that the offending was different in kind—the offending in Auckland involved violence as well as rape, so that ‘the differences between the two sets of offending are significant, while the similarities are relatively minor or relatively commonplace in the context of sexual offending generally’.10 Her Honour then considered s 43(3)(f)—the ‘new’ inquiry into unusualness. This appears to have been a legislative addition to the list of factors to consider when assessing probative value, but it was accompanied by little discussion of its rationale, in an exercise which was expressed to be primarily about codification of the existing law. Early drafts of s 43 were described as drawing on s 404(b) of the Federal Rules of Evidence (US). ­However, this rule only refers to an exception to the exclusionary rule when identity is at issue—that is, where there might be an ‘unusual’ modus operandi.11 7 

ibid [34]. ibid [39]. 9  ibid [38] (c) (iii). (See also [73] per Baragwanath J and [88] ff per Randerson J.) 10 ibid. 11  E McDonald, Principles of Evidence in Criminal Cases (Wellington, Thomson Reuters, 2012) 197. 8 

466  Elisabeth McDonald Judge Sharp had noted the Paihia behaviour was unusual (getting into bed with a sleeping virtual stranger and sexually assaulting her). Glazebrook J agreed with this statement but also concluded that there were no unusual features ‘common to both sets of ­offending’.12 In her view, ‘[s]exual offending against adult women cannot in itself be regarded as sufficiently unusual, unlike sexual offending against young children or arson’.13 The authority for this statement was given as R v Hanson,14 as approved in Solicitor-General v Rudd.15 No supporting argument or statistical material for the proposition was cited. However, as the feminist judge notes,16 statistical information indicates that sexual offending against women is less frequently reported than sexual offending against young girls, yet only the latter offending is categorised as ‘unusual’. Further, how unusual does conduct have to be to make it unusual? Sexual offending against children is not ‘unusual’ as in ‘not usual; uncommon; exceptional’17 when considered relative to the diet of jury trials in the New Zealand District Court—we may just sincerely wish it to be so.

The Feminist Judgment In the dissenting judgment the feminist approach is immediately apparent as the young women are given pseudonyms. Ms Aaron is Cross J’s name for the Auckland complainant and she calls the Paihia complainant Ms Perry. This humanising touch reminds the reader they are actual people, as opposed to just having a particular, and challenging, role in a criminal trial. Judicial representations of sexuality and portrayals of the dynamics of sexual violence have been the subject of feminist critique for many years and across a multitude of common-law jurisdictions. Scrutiny of admissibility decisions has focussed primarily on the operation of rape shield legislation, governing the admission of evidence of a complainant’s sexual history,18 but feminists have also examined criminal disclosure regimes and the law of privilege regarding defendant access to, and use of, medical and therapy records of complainants in sexual offence cases.19 Both areas of law have exposed judicial and 12 

Vuletich (n 1) [38] (f).

13 ibid. 14 

R v Hanson [2005] 1 WLR 3169 (CA) [9]. Solicitor-General v Rudd [2009] NZCA 401 [34]. 16  Cross J, this collection [118]. 17 JA Simpson and ESC Weiner (eds), The Compact Oxford English Dictionary, 2nd edn (Oxford, Oxford ­University Press, 1991). 18  See, eg, TB Dawson, ‘Sexual Assault Law and the Past Sexual Conduct of the Primary Witness: The Construction of Relevance’ (1987) 2 Canadian Journal of Women and the Law 313; J Temkin, ‘Sexual History Evidence—the Ravishment of Section 2’ [1993] Crim LR 3; E McDonald, ‘Syllogistic Reasoning and Rape Law’ (1994) 10 Women’s Studies Journal 41; A McGolgan, ‘Common Law and the Relevance of Sexual History Evidence’ (1996) 16 OJLS 275; M Heath, The Law and Sexual Offences Against Adults in Australia, Australian Centre for the Study of Sexual Assault Issues, No 4 (Melbourne, Australian Institute of Family Studies, 2005). 19  See, eg, S Bronitt and B McSherry, ‘The Use and Abuse of Counselling Records in Sexual Assault Trials’ (1997) 8 Criminal Law Forum 259; K Busby, ‘Discriminatory Use of Personal Records in Sexual Violence Cases’ (1997) 9 Canadian Journal of Women and the Law 148; FE Riatt, ‘Disclosure of Records and Privacy Rights in Rape Cases’ (2011) 15 Edinburgh Law Review 33; E McDonald, ‘Resisting Defence Access to Counselling Records in Cases of Sexual Offending: Does the Law Effectively Protect Clinician and Client Rights?’ (2013) 5 Sexual Abuse in Australia and New Zealand 12. 15 

Vuletich v R—Commentary 467 counsel reliance on rape mythology—including the links made between sexual history and credibility. Admissibility decisions regarding propensity evidence about a defendant’s behaviour on another occasion (usually sexual assault or rape), also provide scope for reform-resistant assumptions about what actions amount to consent and inform a defendant’s reasonable belief in consent.20 In cases where the issue at trial is consent or belief in consent, it is rare for a defendant’s previous convictions for rape, or for other similar allegations, to be admitted,21 absent some signature types of accompanying physical violence or specific sexual practices. The argument against admission is that a previous conviction for rape does not mean, without more, that the defendant has committed another rape. That said, if a defendant denies committing the offence, or claims it was not him, then the issue turns on the likelihood of the offence being committed by that defendant. If the defendant is not testifying, the prior behaviour is not relevant to the defendant’s credibility—but it is certainly relevant to the assessment of the defence raised, and evaluation of who is more likely to be accurately reporting the incident. Cross J considers that propensity evidence about a defendant’s previous, or other, (alleged) sexual offending is always relevant to a case where the credibility of the complainant will be at issue—and this will invariably be so where the defence is consent or belief in consent. The differences identified by the Court of Appeal, in particular, the equivocality of Ms Aaron, is not a difference that is material in the context of sexual offending. Ms Aaron’s vulnerability when faced with a man who had the ability to gain access to her house while she was sleeping and alone, makes her equivocality look more like self-preservation than true consent. Screaming and yelling profanities to Vuletich would not have the same safe outcome as it did for Ms Perry. Rather Cross J is of the view that a man who has demonstrated a reckless disregard, indeed a demonstrated indifference to the willingness of a partner to consent to sexual activity, must be more likely to act with the same indifference to a recent acquaintance who was at least physically more accessible. Given his claim is that he never offended against Ms Perry, the fact that he is someone who has allegedly sexually violated his partner, including by breaking into her home and getting into her bed uninvited, must be relevant to whether he is the kind of person that would sexually assault someone he barely knows. Cast in this way, the differences between the contexts of the offending have less weight than the powerful, and deeply concerning, similarities. The common law emphasis on ‘striking similarity’,22 which Cross J strongly resists reintroducing as a mandatory aspect of the s 43 inquiry, is not helpful in the context of sexual cases. Sexual offenders will only uncommonly have a ‘signature’, beyond targeting a particular type of victim (adult versus a child, female rather than male). To require something to mark their behaviour as specific to them for the purposes of admissibility will result in the introduction of a higher threshold than in other types of cases. However, in this case, there was a ‘modus’, which of itself should have made the existence of two sets of allegations more probative than the Court of Appeal suggested.

20  See, eg, M San Roque, ‘Locating Consent in Similar Fact Cases: Phillips v R’ and A Cossins, ‘Phillips v R’ in H Douglas et al (eds), Australian Feminist Judgments: Righting and Rewriting Law (Oxford, Hart Publishing, 2014). 21  S Bishop and E McDonald, ‘What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases’ (2011) 17 The Canterbury Law Review 168. 22  D L Mathieson, Cross on Evidence, 8th edn (Wellington, LexisNexis, 2005) [13.3].

468  Elisabeth McDonald The other aspects of the feminist judgment of import are the analyses of the inquiry into unusualness and prejudicial effect. Cross J appropriately points out that if the unusual nature of the behaviour is to be assessed by reference to its statistical occurrence, then proved sexual violation of adult women falls into the category of unusual conduct. As such, it points towards admission of other allegations of this type of conduct, especially when it is also similar in nature and context, as here. Cross J is also unconvinced by the majority’s categorisation of the unfair prejudice attached to the admission of the other allegations against Mr Vuletich. In her view, the content of the allegations are not so prejudicial in the hands of a properly directed jury to give rise to either of the concerns codified in s 43(4) of the Evidence Act, being the risk that the evidence is likely to ‘unfairly predispose’ the jury against the defendant, and whether the jury will give ‘disproportionate weight’ to the propensity evidence when reaching a verdict. The prejudice and predisposition inherent in the fact that the complaints are individually serious is not the relevant risk. The focus should be on any additional prejudice arising from hearing the complaints together. When compared, neither complaint is of such different severity to warrant a conclusion that a jury would be unfairly prejudiced against the defendant. Indeed, to find unfair prejudice in such a case would suggest that previous evidence or allegations of this type of offending will never be admissible, for it is the sole repetition of the complaint that is considered to give rise to the prejudice. The approach taken by Cross J, although bold in the context of the jurisprudence of the time, is entirely plausible, especially given the references in the judgment of Glazebrook J to the significance of investigating the credibility of the complainants, and the relevance of similar allegations to such a task. In acquaintance rape trials while much can be known about a complainant’s sexual history, little is disclosed about that of the alleged offender, even when such history includes other allegations of rape, or evidence of previous convictions for sexual violence. If the original decision in Vuletich had charted the course set by the feminist judgment, while also exposing the assumptions inherent in an inquiry into ‘unusualness’, less public concern would remain regarding the lack of information given to a jury about the previous behaviour of a defendant in a rape trial.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA76/2010 [2010] NZCA 102

BETWEEN

BRENDON VULETICH Appellant

AND

THE QUEEN Respondent

Hearing:

18 March 2010

Court:

Glazebrook, Baragwanath, Randerson and Cross JJ

Counsel:

C B Hirschfeld for Appellant K Raftery for Respondent

Judgment:

26 March 2010

Reasons for Judgment: 31 March 2010 at 4.00 pm JUDGMENT OF THE COURT A B

The appeal is allowed. The propensity evidence is ruled inadmissible and the order for joinder is set aside. Order prohibiting publication of the judgment in the news media or on the internet or other publicly available database until final disposition of trials. Publication in Law Report or Law Digest permitted. REASONS Glazebrook J Baragwanath J Randerson J Cross J (dissenting)

[1] [52] [80] [99]

470  Carissa Cross

CROSS J Introduction [99] I write separately as I would refuse Mr Vuletich’s appeal. [100] The Evidence Act 2006 contains no specific guidance as to how a judge is to perform the crucial balancing of probative value against unfair prejudice required by s 43.48 I consider that consistency of decision-making necessitates that in applying ss 40 and 43, and in particular in balancing probative value and prejudice, judges must carefully explain their reasoning process and the assumptions that underlie that reasoning. A disciplined analysis of the five steps specified in ss 40 and 43 should be conducted with any gloss avoided. In particular, ss 40 and 43 do not preclude the complainant’s credibility being a relevant issue, do not reintroduce a test of “striking similarity” and do not require that the sexual violation of adult women be considered “not unusual” behaviour. [101] The five analytical steps required by ss 40 and 43, which I consider in turn, are: (a) What is the defendant’s alleged propensity? (b) Is that propensity relevant to an issue in dispute? (c) What is the probative value of the evidence to the issue in dispute? (d) What is the unfair prejudicial effect of the evidence on the defendant? (e) Does the probative value of the evidence outweigh its prejudicial effect on the defendant? What is the defendant’s alleged propensity? [102] Evidence that an adult male has been involved in previous acts, events or circumstances in which he has sexually violated, or otherwise sexually offended against an adult woman will tend to show, at the most general level, that he has a propensity to sexually violate women (act in a certain way) without respect for the necessity of consent (have a particular state of mind).49 48 49

In this respect I echo the comments of Baragwanath J at [52]. However, I respectfully disagree with the “sliding scale” approach he suggests. Evidence Act 2006, s 40.

Vuletich v R—Judgment 471

The propensity is not a propensity to engage in sexual activity with women: such a propensity would be unexceptional and fails to appreciate the significant difference between consensual and non-consensual sexual activity. The quite different propensity with which the law is concerned is having a propensity to engage in sexual activity without having a reasonable belief that the other party consented, and is an exceptional propensity. [103] The evidence of Ms Aaron and Ms Perry indicates,50 if their evidence is accepted by a jury, that Mr Vuletich has a propensity to get into bed with female acquaintances who are sleeping and have not invited him into their beds, for the purpose of initiating sexual activity, and proceeding with that activity regardless of the consent of the women. [104] In framing the particular propensity, obvious similarities should not be overlooked. Sexual offending occurs in disparate ways and, by way of example, may involve offending against children, men, strangers or women and may occur anywhere and at any time. The fact that Mr Vuletich is alleged to have sexually violated adult women, with whom he is acquainted, at night, in their bedrooms, are all therefore relevant and distinguishing factors that assist in identifying the particular way in which this defendant is alleged to have acted. Is that propensity relevant to an issue in dispute? [105] Characteristic of trials involving allegations of sexual violation, the primary issue at trial is likely to be the broad issue of the credibility of the complainants. I do not consider ss 40 and 43 were intended to, or do, exclude the admission of propensity evidence which is relevant to the complainants’ credibility, due only to the breadth of the central issue in dispute. The inability to identify the issues with further specificity is an often unavoidable consequence of the nature of the charge of sexual violation with its common lack of eye witnesses, forensic evidence and the need for the Crown to prove both a lack of consent and reasonable belief in consent.

50

The complainants have name suppression pursuant to s 139 of the Criminal Justice Act 1975. I use the pseudonym Ms Aaron to refer to the first complainant, who alleges sexual violation (and a number of other offences) in Auckland. I use the pseudonym Ms Perry to refer to the second complainant, who alleges she was sexually violated in Paihia.

472  Carissa Cross

[106] Mr Vuletich has not made a statement in response to Ms Aaron’s allegations but defence counsel has indicated that the likely issues at trial will be whether the sexual conduct with Ms Aaron occurred, whether it was consensual and whether Mr Vuletich had a reasonable belief that Ms Aaron was consenting. In response to Ms Perry’s allegations, Mr Vuletich says he mistakenly got into Ms Perry’s bed and that no sexual contact occurred. It is also possible that in the alternative, at trial, Mr Vuletich will seek to argue consent or reasonableness of belief in consent in relation to the alleged ­sexual violation of Ms Perry. [107] Accordingly, if all allegations are heard together, the issues in this trial will be: (a) whether the sexual conduct in respect of each complainant occurred; (b) if the sexual conduct with Ms Aaron is found to have occurred, whether she consented and/or whether Mr Vuletich had a reasonable belief in consent; and (c) the credibility of each complainant. [108] Evidence that the defendant has allegedly sexually violated another adult woman on a different occasion is relevant to each of the above issues. The developing reluctance in both the appellate and the lower courts to accept that a defendant’s propensity may be relevant to assessing a complainant’s credibility is neither necessitated nor justified by the terms of ss 40 and 43, which require only that the alleged propensity be relevant to an issue in dispute. [109] As a matter of logic, a propensity to get into bed with female acquaintances who are sleeping, initiate sexual activity and proceed with that activity regardless of the consent of the woman will tend to make the following propositions more probable than they would be without the evidence of this propensity: (a) that the sexual conduct complained of occurred; (b) that MrVuletich did not reasonably believe that the sexual conduct was consensual; and (c) that the complainants’ evidence is credible.

Vuletich v R—Judgment 473

[110] A jury must be entitled to consider that the credibility of each complainant may be bolstered by the evidence of the other on the basis that it is highly improbable both complainants, unknown to each other, would lie in similar ways by falsely alleging Mr Vuletich acted in just the way he has a propensity to act. [111] Accordingly, the propensity evidence will be relevant to each of the likely issues at trial being, most significantly, the credibility of the complainant as to whether the events occurred and were non-consensual, but also to the jury’s assessment of whether Mr Vuletich reasonably believed there was consent. What is the probative value of the evidence to the issue in dispute? [112] Having established that the proposed propensity evidence is relevant to the likely issues in dispute, s 43(3) requires an assessment of the strength of that relevance—that is, the probative value of the evidence. Section 43(3) sets out a number of matters that the Judge may consider when assessing the probative value of propensity evidence: (a) The frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred. (b) The connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried. (c) The extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried. (d) The number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried. (e) Whether the allegations described in paragraph (d) may be the result of collusion or suggestibility. (f) The extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

474  Carissa Cross

[113] The Evidence Act is intended to provide a break from the common law.51 The s 43(3) factors, and in particular the requirements to assess ­similarity and unusualness, must be interpreted in this light. [114] Section 43(3)(c) requires an assessment of the “extent of the s­ imilarity” between the events. This factor does not reintroduce a test of “striking ­similarity”. The pre-Evidence Act requirement of striking similarity was only necessary because propensity reasoning was traditionally considered to be ­impermissible.52 As this Court explained in R v M, it was essential to look for something that elevated “the challenged evidence from that of mere propensity to genuinely probative evidence”.53 That elevating factor was often a “striking similarity”; the classic example being an accused who left an esoteric symbol written in lipstick on a mirror at each house he burgled.54 [115] The Evidence Act, however, explicitly recognises the legitimacy of propensity reasoning. Accordingly, a search for “striking similarity” is unnecessary. Assumptions about what are commonplace features of particular kinds of offending should not therefore be used to understate the similarities between offending and to reintroduce a requirement of “striking similarity” in a m ­ anner contrary to the requirements of the Evidence Act. As I have already noted, s­ exual offending occurs in such widely disparate ways that similarities, when they exist, should not be downplayed or overlooked in an inappropriate search for striking similarities. Rather, all similarities should be identified and assessed. [116] Section 43(3)(f) requires an assessment of whether the propensity that is common across the incidents is unusual. There are two approaches that have been adopted by the Courts to assessing this factor: (a) First, a search for some element of peculiarity or signature has occurred. This approach encounters the difficulty described above, that it reintroduces a test of “striking similarity”, but also that this inquiry is repetitive of s 43(3)(c). This approach is demonstrated in the judgment appealed from in which Judge Sharp focussed on the unusualness of getting into the bed of a sleeping woman. ­Similarly, Randerson J, whose judgment I have seen in draft, 51 52 53 54

R v Healy [2007] NZCA 451. See for instance R v W [1995] 1 NZLR 548 (CA) at p 555 per Eichelbaum CJ: “propensity reasoning is not permitted”. R v M CA130/03, 10 July 2003 at [27]. Boardman v DPP [1974] 3 All ER 887 (HL) at 905.

Vuletich v R—Judgment 475

identifies that getting into bed with a sleeping woman might be regarded as unusual. (b) Second, as illustrated in the judgment of Glazebrook J, judges have considered the extent to which the alleged propensity constitutes a departure from normal standards of typically law-abiding behaviour. On this approach, sexual offending against children and arson have, despite their unfortunate commonness, been considered “unusual” behaviours, and propensity evidence has readily been admitted.55 [117] I consider that the first approach, being both repetitive of s 43(3)(c) and reintroducing a test of striking similarity, ought to be avoided. In applying the second approach, it is necessary to ensure that the analysis of what constitutes an unusual departure from typical behaviour is both grounded in fact and clear as to its moral assumptions. For my part, I consider that ­sexual offending against adult women constitutes a significant departure from acceptable behaviour and is itself inherently unusual. In reaching this view I have considered that sexual offending is marked out by the law as ­warranting particularly stern s­ entences,56 and that sexual offending against adult women is actually less common than sexual offending against ­children,57 offending which the courts have readily accepted is unusual. Assessment of the probative value of the propensity evidence [118] Applying the s 43 factors to these circumstances, I note the following. Two women make allegations against Mr Vuletich. Ms Aaron alleges that Mr Vuletich raped her twice and sexually violated her on three other occasions. Ms Perry makes a single allegation of sexual violation. In relation to the more particular allegation of getting into the bed of a sleeping acquaintance (and subsequently sexually violating the acquaintance) there is a single allegation by both complainants. [119] The allegations by both complainants are very closely connected in time. Ms Perry alleges that she was sexually violated within a month of the 55 56 57

See the observations in R v Hanson [2005] 1 WLR 3169 (CA) at [9], approved in Solicitor-General v Rudd [2009] NZCA 401 at [34] and accepted by Glazebrook J. Crimes Act 1961, s 128B. J Fanslow and others “Prevalence of child sexual abuse reported by a cross-sectional sample of New Zealand women” (2007) 31 Child Abuse & Neglect 935; J Fanslow and E Robinson “Violence against Women in New Zealand: Prevalence and health consequences” (2004) 117 NZMJ 1206.

476  Carissa Cross

first ­violation of Ms Aaron and less than a month before Ms Aaron says Mr Vuletich got into her bed at night time and subsequently raped her. In relation to the two allegations of Mr Vuletich violating the complainants in their beds, the offending has a number of similarities: (a) both complainants are women; (b) both complainants are adults and aged around the same age as Mr Vuletich; (c) Mr Vuletich was acquainted with both women. He was in a short ­relationship with Ms Aaron and had occupied the same room at a backpackers’ with Ms Perry for three days; (d) both complainants were sleeping, at night time, when Mr Vuletich initiated sexual contact. Ms Aaron was sleeping in her bed in her home, Ms Perry in her bed at the backpackers’; (e) Mr Vuletich got into the beds of both women. He broke into the privacy and safety of Ms Aaron’s home by climbing through the window and avoiding the trap Ms Aaron had set. He got into the only private and safe space Ms Perry had in a communal backpackers’ room, being her bed; (f) Mr Vuletich lay alongside both women and began touching them without attempting to wake or speak to them. Ms Aaron awoke and spoke to Mr Vuletich. Ms Perry did not awake until Mr Vuletich was sexually violating her; and (g) Mr Vuletich sexually violated both women. Sexual offending occupies a wide spectrum but here Mr Vuletich sexually violated both women—it matters not, given the agreed severity of both types of violation, that one type can also be referred to as rape. [120] There are some obvious differences between the offending but these do not, in my opinion, detract from the above similarities given the inevitability that there will be differences in the manner in which sexual offending occurs stemming from the wide range of possible sexual behaviour and circumstances in which offending can occur. [121] There is no risk that the allegations were influenced by collusion. The complainants were, and remain, unknown to each other. The fact that they make such similar allegations is therefore of significance. [122] Both complainants’ allegations involve the unusual propensity to ­sexually violate women and to disregard whether they consent. ­Additionally,

Vuletich v R—Judgment 477

they involve the quite unusual element of getting into the bed of a sleeping woman who has not invited Mr Vuletich into, or given any indication that he is welcome in, that bed. Ms Aaron attempted to set a trap for Mr Vuletich and Ms Perry had not exchanged any conversation with Mr Vuletich that could have given rise to a belief he was wanted or invited into her bed when she was sleeping. [123] In light of the above factors, I consider the evidence of each complainant has significant probative value in relation to the other’s allegations as a jury would be asked to adopt the following, persuasive, chain of reasoning: (a) two women who were acquainted with Mr Vuletich allege that Mr Vuletich got into bed with them while they were sleeping and sexually violated them without their consent; (b) it would be quite a coincidence if two women unknown to each other just happened to falsely accuse the same man of sexually violating them during a similar time period in similar ways; and (c) therefore, it is more likely that the appellant sexually violated both women. What is the unfairly prejudicial effect of the evidence? [124] Section 43 only requires consideration of “unfair” prejudice to the defendant. The prejudice to the defendant which comes from the legitimate probative value of the evidence is not “unfair”. [125] Section 43(4) contains two mandatory matters that the judge must consider when assessing the prejudicial effect of the evidence on the defendant. These matters are: (a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and (b) whether in reaching a verdict the fact-finder will tend to give ­disproportionate weight to evidence of other acts or omissions. [126] These mandatory factors incorporate what the common law refers to as “moral prejudice” and “reasoning prejudice”. The risk of moral prejudice is that a jury will seek to punish the accused for the similar conduct or his general bad character instead of determining his guilt for the particular acts with which he is charged. The risk of reasoning prejudice is that a jury will be distracted by the cumulative force of so many allegations from their task of deciding carefully each charge one by one.

478  Carissa Cross

[127] There is nothing here to suggest that unfair prejudice would be caused to the defendant. The jury will already be required to hear that Mr Vuletich is accused of sexually violating Ms Aaron, or in Ms Perry’s trial, Ms Perry. A jury hearing evidence of sexual violation is not going to be so morally outraged by the additional charges of burglary or assault in relation to Ms Aaron, or the evidence of their relationship, that it will be incapable of deciding the much more serious charge of sexual violation of Ms Perry by carefully considering the evidence. The conclusion reflected in the majority judgments, that the jury will be so affected, implicitly assumes that physical violence and burglary are more morally repugnant than sexual violation. Similarly, the jury hearing of the significant offending against Ms Aaron is most unlikely to be distracted or unfairly outraged by the single charge of sexual violation against Ms Perry. The conclusion reflected in the majority judgments, that the jury will be so affected, assumes that sexual violation of a brief acquaintance is significantly more morally repugnant than the sexual violation of a former partner. Such reasoning is unconvincing. Does the probative value of the evidence outweigh its prejudicial effect? [128] The starting point for an admissibility inquiry must always be that our jury system operates on the assumption that juries are capable of understanding and applying any direction they are given. From that starting point, the question is whether despite those directions there is a risk that a jury will be so influenced by its prejudice that it will fail to limit its use of propensity evidence to the permissible process outlined above at [125]. [129] Unlike the majority, I consider that the proposed propensity evidence has substantial probative value. For that reason significant prejudice to the defendant would be needed to outweigh that probative value. I am not convinced that there is a sufficient risk a juror will misuse the evidence. Though the evidence is of morally repugnant behaviour, neither set of offending is of such separate and differently repugnant conduct that I consider the jurors’ reasoning processes will be overwhelmed. In these circumstances, I see no reason why a properly-directed jury cannot be entrusted to use the evidence appropriately as being probative of guilt, while being properly cautious as to its use in their decision-making process. Conclusion [130] I would dismiss the appeal. As the evidence is cross-admissible, it is in the interests of justice that the trials be heard together.

Defences

480 

Commentary on Police v Kawiti Kāwiti at the Centre JULIA TOLMIE AND KHYLEE QUINCE

He tangata takahi manuhiri, he marae puehu A person who mistreats their guest has a dusty marae

In Police v Kawiti Sharon Kāwiti was attacked by her partner on her partner’s family marae in a remote Northland location.1 After the attack, she was in ‘excruciating’ pain as a result of her injuries but drove almost 100 kilometres to the accident and emergency department at the nearest hospital to get medical attention for a dislocated shoulder. A constable, who was called in respect of the assault on her, laid charges against her for driving while over the limit and unlicensed. A case was stated to the High Court from the District Court. The crux of the question for decision was whether Ms Kāwiti had the common-law defence of duress of circumstances available to her on this set of facts and, if so, what the legal requirements of the defence were. Duress is an excuse-based defence—meaning that the defendant’s actions are not seen as the right thing to do, but as excusable given the circumstances. It has two manifestations in English common law. Duress by threats covers ‘stand over’ situations, where the defendant is forced to commit the offence by a third party who demands that they do so under threat of death or serious injury. This defence is reasonably well developed at common law and was codified in New Zealand in s 24 of the Crimes Act 1961 (NZ) in the form of a defence of ‘compulsion’. Duress of circumstances, on the other hand, covers situations of generalised emergency where nobody is demanding that the defendant commit the offence but it is, in the ­circumstances, necessary to do so in order to avoid death or serious injury. This defence took longer to achieve recognition in the case law (perhaps because it was first raised in a case involving the cannibalism of a cabin boy after a shipwreck)2 and is rather less developed than duress by threats. As a consequence, the defence was not codified in the Crimes Act 1961 but continues to exist at common law.

1  2 

Police v Kawiti [2000] 1 NZLR 117 (HC). R v Dudley and Stephens [1875] 14 QBD 273 (DC).

Mana Wahine

25

482  Julia Tolmie and Khylee Quince

Terminology Mana Wahine

In the case stated and the original judgment in Kawiti the defence of duress of circumstances is referred to as ‘necessity’.3 The defence of necessity proper, however, is different to the defence of duress of circumstances. Necessity does not require an emergency that overpowers the will of the person acting. It covers situations where a person is faced with two evils and the offending is, on balance, the right thing to do because it avoids the greater harm. Unlike duress of circumstances, necessity is a justification—the behaviour, although technically an offence, is not considered morally wrong. An extreme example is Re A (Conjoined Twins) in which Lord Justice Brooke decided that conjoined twins could be surgically separated even though separation meant certain death for one because failing to perform the surgery would inevitably mean death for both.4 At the time that Kawiti was decided, using the term ‘necessity’ to refer to the defence of duress of circumstances was fairly typical in legal discussion.5 It was not until 2010 in the case of Attorney-General v Leason that the High Court clearly recognised that the defence of ‘necessity’ is conceptually and legally distinct from the defence of ‘duress of circumstances’.6 Nonetheless, the feminist judgment confronts the fact that the term ‘necessity’ as it was used in the case stated is not accurate and substitutes more accurate terminology.

A Restrictive Approach to Compulsion Duress by threats was codified in s 24 of the Crimes Act 1961 with restrictive legal requirements. The section requires the presence of the aggressor during the offending and a demand by the aggressor that the defendant commit the offence under threat of immediate death or serious harm. Simply being terrified of another person and believing that death or serious harm will be the result of failing to comply with their demands will be insufficient to meet these requirements.7 The legal requirements therefore focus on finding coercion in the immediate circumstances surrounding the offending rather than the larger coercive circumstances faced by those who are living entrapped lives. As acknowledged in 2013 by the Supreme Court in Akulue v R this means that the section may:8 be seen as under-inclusive because threats which do not meet the immediacy and presence criteria may nonetheless be very coercive in the sense of leaving no reasonable alternative but compliance.

Although Kawiti does not directly concern the defence of compulsion, the decision took place in 1999 at the inception of a line of authority, now firmly established, extending the

3 

Kawiti (n 1). In re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254, [2001] 2 WLR 480. 5  eg, the New Zealand Law Commission used the term ‘necessity’ in this manner in Battered Defendants: Victims of Domestic Violence Who Offend: Preliminary Paper 41 (Wellington, NZLC PP41, 2000) 49, 57–65. However, in 2001 it acknowledged this was a mistake: New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants: Report 73 (Wellington, NZLC R73, 2001) 61. 6  Attorney-General v Leason [2011] NZHC 1053. 7  R v Teichelman [1981] 2 NZLR 64 (CA). 8  Akulue v R [2013] NZSC 88, [2014] 1 NZLR 17 [13]. 4 

restrictive approach taken in s 24 to the defence of duress of circumstances.9 As explained in the feminist judgment this exacerbates rather than relieves the problems in accessing the duress defences experienced by women who offend in response to the coercive pressure exercised by their violent partners. When Kawiti was decided, the overwhelming body of feminist academic engagement with the criminal defences was focussed on the shortcomings of self-defence when applied to women’s lives, rather than the duress defences. There were, however, notable exceptions to this,10 and subsequently a body of scholarship has developed dealing with this issue.11 Kawiti was decided just before the Law Commission recommended amendments to s 24 to improve access to the defence for primary victims of intimate partner violence.12 Legislative reforms did not, however, occur and the problems identified by the Law Commission remain. Equally unsuccessful in producing change have been attempts to argue for a wider interpretation of the concept of ‘presence’ in s 24 to allow temporary absences in circumstances where the coercion and the offending is ongoing.13 The majority of these unsuccessful attempts have involved women who are in relationships with violent male partners.14 In each instance the courts have reaffirmed that physical presence—interpreted narrowly— is required for the entire duration of the offending if compulsion is to be successfully raised. Whilst s 24 reflected the common law position at the time of enactment, the common law has developed subsequently, dropping the requirements of immediacy and presence and instead introducing an objective assessment of the coercive nature of the defendant’s circumstances. A number of Australian states have similarly relaxed the strict requirements for duress by threats via statutory reform.15 The Supreme Court of Canada has gone further and held that the common law defence of duress by threats survives statutory codification because s 7 of the Canadian Charter of Rights and Freedoms requires that no one should be deprived of their liberty otherwise than in accordance with the principles of fundamental justice. R v Ruzic held that it was contrary to principles of fundamental justice that a person whose behaviour was morally involuntary should attract criminal liability because the statutory enactment of the defence does not apply to the facts but the common law version would.16 In Akulue v R the New Zealand Supreme Court refused to follow this authority, pointing out that the constitutional context in New Zealand is different.17 However, it also went on to say that it did ‘not accept that recognition of moral involuntariness is a principle of fundamental justice’.18

9 

See, eg, R v Neho [2009] NZCA 299; Akulue (n 8). eg, M Blake, ‘Coerced into Crime: The Application of Battered Women Syndrome to the Defense of Duress’ (1994) 9 Wisconsin Women’s Law Journal 67; E McDonald, ‘Women Offenders and Compulsion’ [1997] New Zealand Law Journal 402; M Shaffer, ‘Coerced into Crime: Battered Women and the Defence of Duress’ (1999) 4 Canadian Criminal Law Review 271. 11  See J Loveless, ‘Domestic Violence, Coercion and Duress’ [2010] Crim L R 93; S Nouri, ‘Critiquing the Defence of Compulsion as it Applies to Women in Abusive Relationships’ (2015) 21 Auckland University Law Review 168. 12  Law Commission, Some Criminal Defences (n 5) 60–71. 13  cf R v Ruzic [2001] SCC 24, [2001] 1 SCR 687 [49]; Goddard v Osborne (1978) 18 SASR 481, [1978] 21 ALR 189. 14  Rihari v Department of Social Welfare (1991) 7 CRNZ 586 (HC); Lavea v Department of Labour [2002] BCL 653 (HC); The Queen v Richards (CA 272/98, 15 October 1998); R v Witika [1993] 2 NZLR 424 (CA). E Stark, Coercive Control: How Men Entrap Women in Personal Life (Oxford, Oxford University Press, 2007) 208. 15  E Sheehy, J Stubbs and J Tolmie, ‘When Self-Defence Fails’ in K Fitz-Gibbon and A Freiberg (eds), Homicide Law Reform in Victoria: Retrospect and Prospects (Sydney, The Federation Press, 2015) 110, 122–123. 16  Ruzic (n 13). 17  Akulue (n 8). 18  ibid [20]. 10  See,

Mana Wahine

Police v Kawiti—Commentary 483

484  Julia Tolmie and Khylee Quince

Duress of Circumstances Mana Wahine

As pointed out above, the significance of Kawiti is that it represented a moment in time when a developing line of authority, unique to New Zealand, could have been disrupted. This line of authority first appeared in the Court of Appeal decision in Kapi v Ministry of Transport19 which was followed in the original judgment in Kawiti.20 It holds that if the threat that the defendant is facing comes from a human, s 24 must be relied on and the common law defence of duress of circumstances is unavailable. Just after Kawiti was decided the logic of this approach was questioned by the Law Commission:21 Section 24 is intended to cover the typical stand-over situation where one person commits an offence because he or she is threatened by another person with death or serious bodily harm unless the first person does as he or she is told. This is not the only kind of situation in which one human being can be a source of peril for another human being. A lynch mob poses no less a threat to its target, even though its intention is not to compel the target to commit a crime, but to kill him or her outright. Just why the provision of a defence under section 24 for acts committed under one kind of human threat necessarily precludes a defence for acts committed under another kind of human threat is not readily apparent.

Nonetheless, in 2013 this line of authority was upheld by the Supreme Court in Akulue v R22 on the basis of a particular reading of both s 24 and the opinions of the Commissioners who wrote the Draft Criminal Code on which the section is based.23 The Supreme Court did not acknowledge the impact of this interpretation on the lives of women in relationship with violent partners,24 or analyse the benefits of taking an alternative (equally plausible) reading of the statute.

Intimate Partner Violence as a Vehicle for Considering Structural Issues in the Criminal Justice Process A problematic feature of the original judgment in Kawiti is what is not said about one of the central facts in issue—the violent attack that Ms Kāwiti was responding to. This attack was presented in the judgment as a one-off event. However, what is known about intimate partner violence, combined with the severity of the attack, makes it highly unlikely that this

19 

Kapi v Ministry of Transport [1992] 1 NZLR 227 (HC). Subsequent decisions upholding this line of authority include R v Neho (n 9). Law Commission, Some Criminal Defences (n 5) 73–74. 22  Akulue (n 8) [27]–[29]. 23  Criminal Code Bill Commission, Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Charges (London, George Edward Eyre and William Spottiswoode, 1879) 44. The text is not unambiguous and a contrary reading is possible. It is also amenable to a reading to the effect that the defence of duress by threats is codified, but other variants of the defence of necessity should be left to the common law to further develop on a case by case basis. The Commissioners admittedly did provide an example of an emergency with a non-human source to illustrate when the defence of necessity might be raised on a set of facts, but they were writing at a time when the issue of intimate partner violence was not generally understood as a social problem. 24  eg, in Hocking v New Zealand Police [2012] NZHC 3192, [2013] BCL 48 an accused, trying to escape her ­partner who had broken into her house and then pursued her in his car, was not able to raise the defence of ­necessity in respect of her driving charges. This was because, following this line of authority, the defence of ­necessity was unavailable to her because the source of the threat she was under was human. 20  21 

was an isolated event in Ms Kāwiti’s relationship with her partner.25 The approach taken in the case reflects a general tendency within the criminal justice system to fragment patterns of harm (that are experienced as cumulative and compounding by the victim) into individual and decontextualised incidents. There is also a tendency to frame intimate partner violence as an issue of choice and, in particular, the victim’s choice about whether to stay in the relationship. Such an approach is supported by what Norrie has referred to as the ‘psychological individualism’ of the criminal law—where fundamental assumptions about ‘free will,’ and a tendency to universal and abstract reasoning, has the effect of converting patterns of social harm and the larger structural constraints of people’s lives into individual problems, the result of poor individual choices.26 Ptacek, on the other hand, describes intimate partner violence as a form of ‘social ­entrapment’ with three dimensions:27 First, the social isolation, fear and coercion that an abusive partner’s violence creates in a victim’s life; Second, the indifference of powerful institutions to a victim’s suffering; and Third, the ways in which coercive control28 (and the indifference of powerful institutions) can be aggravated by the structural inequities of gender, class and racism.

The advantage of taking this approach to understanding intimate partner violence is that it connects the private violence suffered by women with the official responses offered by crisis services and the courts. It also requires an overt exploration of the range of abusive tactics employed by the perpetrator (including the effect of these on the victim’s sense of autonomy, connectedness and ability to seek help), as well as the broader structural constraints of women’s lives (in this instance, a particular Māori woman’s life). Kawiti is a classic example of how intimate partner violence might operate as a form of entrapment that is compounded by the official responses to victim help seeking (as mediated by the intersection of racism, class and sexism). Ms Kāwiti was the victim of a serious assault, witnessed by others in her community, presumably all Māori, and all related to her partner—who not only failed to stop the assault but failed to assist her. She fled this dangerous situation and alerted the police, as any citizen is entitled to do, and, instead of receiving assistance, was responded to in a punitive fashion—resulting in the prosecutions at the centre of this case. Interestingly (although possibly because the case was an appeal on a point of law), there is no mention in the judgment as to whether her partner was prosecuted for his assault on her. The response of the constable in this case sends a terrible message to other women in situations similar to that of Ms Kāwiti—unless you are completely blameless do not call the authorities for help because you will be responded to as an offender. This is notwithstanding the fact that, by any objective measure, the harm committed against Ms Kāwiti was far

25 Family Violence Death Review Committee, Fourth Annual Report: January 2013 to December 2013 ­(Wellington, HQSC, 2014) 71–81. 26  A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law, 2nd edn (London, ­Butterworths, 2001); A Norrie, Law and the Beautiful Soul (London, Cavendish Publishing, 2005). 27  J Ptacek, Battered Women in the Courtroom: The Power of Judicial Responses (Virginia, Northeastern U ­ niversity Press, 1999) 10. 28  On the concept of coercive control, see Stark, Coercive Control (n 14).

Mana Wahine

Police v Kawiti—Commentary 485

486  Julia Tolmie and Khylee Quince

Mana Wahine

in excess of the harm committed by her. It is also despite the fact that women who have experienced abuse, particularly intergenerational abuse and/or abuse by multiple perpetrators, will typically be struggling with a raft of complex co-morbidities—including substance abuse issues—and difficult life circumstances. In other words, the most vulnerable women with the highest levels of trauma who are in the greatest need of access to the crisis services are the least likely to be ‘blameless’.29 The response of the Court in the original judgment in Kawiti compounded Ms Kāwiti’s experience of entrapment. Any human in unbearable suffering would seek relief from that suffering and yet her attempt to do so was not characterised as reasonable or excusable. Her partner’s family, whom she experienced as complicit in his abuse of her, are constructed by the Court as neutral sources of potential help. In the original judgment in Kawiti Ms Kāwiti lost out on all fronts—as a woman suffering violence at the hands of her partner who was left worse off as a result of the criminal justice intervention, and as a Māori woman who risked the wrath and censure of her community by calling for assistance and thereby bringing police scrutiny to the community.

The Mana Wahine Judgment The traditional whakatauki or proverb that opens up this commentary shows the importance of manaakitanga or hospitality in Māori culture and custom, and is central to a Māori understanding of the facts in R v Kawiti. Mistreating a guest, failing to discharge one’s hospitality obligations, is a major breach of Māori custom,30 and will result in a diminishment of reputation and a lack of future visitors and ­relationships—hence the ‘dusty marae’ or meeting house. This analysis also underpins a mana wahine reading of this case and its commentary. Mana wahine, Māori feminist theory, draws upon critical race feminism in placing the minority female subject at the centre of our analysis.31 In doing so, we provide context and an explanation of the intersecting elements of what we know of Ms Kāwiti’s identity—as Māori, as female, as a member of her own whānau, hapū and iwi, as ­colonial subject, as a survivor of intimate partner violence. The context in which the violence against her occurs is an example of ‘lateral violence’ common in settler society indigenous communities—where members of a marginalised community harm one another as a form of displaced anger against their true adversaries.32

29 

For a classic example of victim blaming see: R v Paton [2013] NZHC 21 [6]–[7]. HM Mead, Tikanga Māori: Living by Māori Values (Wellington, Huia Publishers, 2003) 29. generally, LT Smith, ‘Choosing the Margins: The Role of Research in Indigenous Struggles for Social Justice’ in NG Denzin and M Giardina (eds), Qualitative Inquiry and the Conservative Challenge (London, Left Coast Press, 2006) 151. 32  See N Clark and S Hunt, ‘Navigating the Crossroads: Exploring Rural Young Women’s Experiences of Health Using an Intersectional Framework’ in O Hankivsky (ed), Health Inequities in Canada: Intersectional Frameworks and Practices (Vancouver, University of British Columbia Press, 2011) 131. See also N Clark, ‘Perseverance, Determination and Resistance: An Indigenous Intersectional-Based Policy Analysis of Violence in the Lives of Indigenous Girls’ in O Hankivsky (ed), An Intersectionality-based Policy Analysis Framework (Vancouver, Institute for Intersectionality Research and Policy, 2012) 133, 140–141. 30 

31  See

Quilmie J’s feminist judgment thus presents an alternative to the original High Court judgment in Kawiti. Because the case was decided in the High Court the decision of the Court of Appeal in Kapi was authoritative.33 In the feminist judgment, rather than applying Kapi as the original judgment did, it is held that the Court’s observations on duress of circumstances in Kapi were obiter and therefore not binding on the High Court. Furthermore, Kapi is distinguished on the facts because the threat faced by Ms Kāwiti did have a non-human source (the medical emergency presented by her dislocated shoulder) rather than a human source. The feminist judgment also points to the lack of common law authority for making a distinction between human and non-human threats in relation to the defence of necessity, but also the broader social ramifications that would flow from this distinction.

Māori Customary Law The feminist judgment also points out that there is a need to address Māori ­customary law if the circumstances of the defendant are to be realistically appraised for the p ­ urposes of applying the ‘objective’ elements of the defence of duress of circumstances. Whilst the judgment explains a Māori cultural perspective in relation to the facts of the ­particular case, the need to do this more generally and consistently when applying the criminal law presents significant challenges. It requires an appreciation of Māori customary law, including, as in this case, manaakitanga, and also a nuanced consideration of and accounting for the lives and contexts in which Māori operate in contemporary New Zealand society. The justice system in which such cases are heard and decided is not Māori. The lawyers who present the case to the court are not likely to be Māori, and the judges even less so. However, in the New Zealand context, the defendant and often their victims, are likely to be Māori. Their identities, their lives, the contexts in which they operate, are likely to be strongly influenced, if not constructed around, Māori ways of thinking, being and doing. In addition to different cultural understandings of behaviour, relationships and obligations, Māori lives are strongly shaped by their collective experience of the intergenerational trauma that has resulted from surviving colonisation. Māori contemporary identities are a complex blend of their unique culture, as affected by the forces that have also caused widespread marginalisation and poverty amongst Māori. The challenges for the legal system are significant. The role of custom law in criminal law has recently been considered by appellate authorities in New Zealand. In R v Mason,34 the Court of Appeal confirmed the High Court finding of Heath J, that custom law as a system of dealing with wrongdoing was extinguished by virtue of the operation of ss 5 and 9 of the Crimes Act 1961.35 This ruling echoed that of the Supreme Court in Takamore v Clarke (a non-criminal case) in which the Chief Justice observed that custom law retained

33  34  35 

Kapi (n 19). R v Mason [2013] NZCA 310, (2013) 26 CRNZ 464. ibid [3].

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Mana Wahine

a residual role in informing the common law,36 where it was not ‘contrary to statute or to fundamental principles and policies of the law’.37 The combined effect of these decisions in the criminal law context has been generally to place matters of culture and custom into the sentencing and punishment stage of the criminal process, rather than being considered at the adjudicatory stage. However, there remains an opportunity to place cultural information and matters of law at the centre of analysis, by being included in the application of the test for duress of circumstances set out in Kapi.38 It may be argued in line with contemporary Treaty of Waitangi jurisprudence that there is a duty upon the Crown to actively protect Māori custom law where it does not offend statutory codes or common law.39 The feminist judgment incorporates such information and its c­ onsequential analysis into a discussion of how the normative assessments involved in the legal ­requirements for the defence should be applied. Even if judges and lawyers were more diverse and representative of their clientele, this does not guarantee an enlightened hearing for Māori customary law or for the relationship between colonisation and contemporary lives characterised by entrapment, risk and victimisation. On a broader level, there is also the political question as to whether it is appropriate for non-Māori actors in a non-Māori context to take notice of tikanga Māori as custom law. Given the crisis of Māori over-representation and entanglement in criminal justice in New Zealand, these are pressing questions, and they require significant political will and resources if they are to be addressed appropriately.

36 

Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733. ibid [94]. 38  Kapi (n 19). 39  As per R v Mason (n 34). 37 

High Court  Whangarei 28 July; 26 August 1999 Quilmie J

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QUILMIE J. The District Court at Whangarei has stated a case seeking the opinion of 15 this Court on the following two questions: 1. Whether in a criminal prosecution pursuant to the Transport Act 1962 the defence of necessity is available to a defendant; and if so 2. Whether the ingredients of the defence are as set out by the Court of Appeal in Kapi v Ministry of Transport (1991) 8 CRNZ 49. Background Sharon Kawiti is charged with two offences—driving with excess blood alcohol and driving while disqualified. Both charges relate to a series of events that took place on 11 October 1998. On that day Ms Kawiti drove from Taipa to the Emergency Department at the hospital in Kawakawa at about 4 am. She required medical treatment for a dislocated shoulder joint. A nurse at the hospital called the police to report an assault on Ms Kawiti, at Ms Kawiti’s request. Ms Kawiti spoke to the police constable who attended. She admitted she had driven from Taipa and was a disqualified driver. The police constable arranged for blood tests and then laid the two charges above referred to against her. I note at the outset that the police always have a discretion not to lay charges in these types of circumstances. Victims of serious physical violence should be able to call the police for help and expect the responding officers to be cognisant of the dynamics of domestic violence and act in accordance with such understanding. The defence conceded that all the elements required to be proved by the informant on each of the charges had been proven beyond reasonable doubt. The sole issue that remained was whether Ms Kawiti could raise the defence of necessity in relation to the two offences. The facts providing the background to the charges are as follows. Ms Kawiti and her partner Mr Nathan (both Maori) were attending an unveiling at his family’s marae in Taipa, an isolated small community in the Far North. Due to an incident that had occurred earlier in her life Ms Kawiti did not wish to sleep in the marae complex and so the pair had planned to sleep in the car instead. Large quantities of alcohol were consumed, including by Ms Kawiti and Mr Nathan. During the course of the day, the pair had an argument during which Ms Kawiti was violently assaulted by Mr Nathan. He kicked her karate-style to the shoulder, resulting in the dislocation of her shoulder joint. Ms Kawiti was then punched and stomped on when she was on the ground. Other members of the group urged Mr Nathan to kick Ms Kawiti again and he did so. When one of the group stopped the assault, Ms Kawiti ran away believing that she was in danger of being further punched and kicked and might die or suffer serious injury as a result.

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Ms Kawiti eventually went back to the car and found Mr Nathan asleep in it. She drove just under one hundred kilometres to the hospital in Kawakawa to seek treatment for her injuries, the pain of which she described as “excruciating.” Mr Nathan slept throughout this journey. An x-ray subsequently confirmed that she had suffered a dislocation of the 5 AC joint. Ms Kawiti gave evidence that she could not stay at the marae because she did not know anyone and had not been properly introduced during the protocols by Mr Nathan. She thought that if she went back into the marae complex again she would be beaten and attacked. She said that she had to leave the area because she had not been to Taipa before 10 and knew neither where to go nor anyone there. She could not see any houses nearby with lights on. When working in the kitchen in the marae earlier in the day she did not notice any telephone that she could have used. The defence of necessity was raised and the Judge hearing the case determined that the questions set out above should be referred to this court for determination. 15 The defence of necessity There are a number of self-preservation defences at common law; for example, self-defence, duress by threats, duress of circumstances and necessity. All of these defences either excuse or justify criminal offending that is necessary in order to avoid serious injury or death to either the offender or a third party. 20 There are several rationales for these defences. The first is an acknowledgement that, while the defendant was acting in exercise of their will to act (in other words, acting in a physically voluntary fashion) when they committed the offence, their actions were not voluntary in the moral sense. Their free will was circumscribed by the circumstances which meant that the alternative to offending was death or serious harm. In the Supreme Court of 25 Canada Dickson J stated that it would infringe the principles of natural justice to brand a person with the stigma of criminal liability when they “did not have any realistic choice” but to offend because the decision “to break the law is not really a choice but is remorselessly compelled by normal human instincts” (R v Perka [1984] 2 SCR 232; (1984) 14 CCC (3d) 385). 30 These self-preservation defences have a second rationale; the balancing of harms. The crime that the defendant committed can be judged less serious than the harm that they hoped to avoid (R v Teichelman [1981] 2 NZLR 64, 66). In R v Raroa High Court Timaru, 29 June 1987, at p 24, Hardie Boys J, speaking of the defence of compulsion, said: 35

“It is not so much a question of negativing will or even perhaps neutralising it so much as of the offender being forced to choose to commit the act out of fear of the consequences of doing otherwise. It is a matter of having to choose the lesser of two evils.”

In R v White (1987) 9 NSWLR 427 the NSW court said that public policy requires sparing use of the necessity defence. However, as the offence in issue becomes less serious, the balance more readily falls to the side of the one who commits the offence. A possible death must far outweigh some minor infraction of the legislation creating vehicular offences, for example. Some of the common law self-preservation defences have been codified while others 45 continue to exist at common law. Section 24 of the Crimes Act 1961 codifies the defence of duress by threats in the following terms: 40

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24. Compulsion—(1) Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from

criminal responsibility if he or she believes that the threats will be carried out and if he or she is not a party to any association or conspiracy whereby he or she is subject to compulsion. Section 48 codifies the defence of self-defence in the following terms:

5

48. Self-defence and defence of another—Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use. While both compulsion and self-defence have been enacted in the Crimes Act 1961, 10 the common law defence of necessity has not. The legal position is complicated by the fact that “necessity” has two common law forms. The first, at issue in the case stated to this Court, might be more accurately referred to as “duress of circumstances” rather than “necessity”. Necessity proper is a distinct common law defence that is grounded in the second rationale for the self-preservation defences set out above—the balancing of harms, 15 rather than emergency circumstances. For the purposes of avoiding confusion I will use the more accurate terminology and refer throughout this judgment to “duress of circumstances”, rather than “necessity”. Defences that exist at common law are preserved by s 20 of the Crimes Act 1961: 20. General rule as to justifications—(1) All rules and principles of the common 20 law which render any circumstances a justification or excuse for any act or omission, or a defence to any charge, shall remain in force and apply in respect of a charge of any offence, whether under this Act or under any other enactment, except so far as they are altered by or are inconsistent with this Act or any other enactment. 25 The common law defence of duress of circumstances is not responsive to actions taken by the defendant as a consequence of being “stood over” by another. Those situations are covered by the defence of duress by threats, now codified in New Zealand in s 24 as the defence of compulsion. Instead, duress of circumstances covers situations where no one is demanding that the defendant commit any particular offence but the defendant does so 30 because he or she is in circumstances that threaten death or grievous bodily harm and has no other realistic means of avoiding this harm. At English common law the distinction between duress by threats and duress of circumstances was a distinction between what was referred to by Woolf LJ in R v Conway [1988] 3 WLR 1238 as “the ‘do this or else’ species of duress,” and situations of more generalised emergency. 35 The English case law does not make a distinction between threats from human and non-human sources for the purposes of the defence of duress of circumstances. R v Conway [1988] 3 All ER 1025 is an example of a case in which the defendant was permitted to raise the defence of duress by circumstances in response to threats of harm from a person. In Conway the defendant was charged with reckless driving. He argued that he was 40 trying to avoid what he thought was going to be a fatal attack on one of the passengers in his car by some men approaching the car. In fact the men were police officers who wished to apprehend his passenger. Although duress of circumstances has yet to be applied by the higher courts it is a defence that has now been successfully raised in at least one New Zealand case involv- 45 ing less serious offending. In Police v Anthoni [1997] DCR 1034 a doctor was permitted to raise necessity in respect of charges of assaulting a child under s 194 of the Crimes Act 1961. He swiped a child off an inflatable tube that was going near some jagged rocks in circumstances where the children clinging to the tube were refusing to swim to safety and he was exhausted and unable to continue managing the tube. The Judge held that the 50

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Police v Kawiti—Judgment 491

492  Khylee Quince and Julia Tolmie

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defendant had a belief formed on reasonable grounds of imminent peril of serious injury; there was no other realistic choice but to strike the child; and his response was proportionate to the threat. Turning to the present case, it is clear that neither s 24 nor s 48 is applicable to Ms Kawiti’s situation. Section 24 is not available because the only person present at the time the offence was committed was Mr Nathan. He was asleep in the car and did not demand that Ms Kawiti drive under threat of immediate death or grievous bodily harm. In other words, this was not a standover situation. Section 48 is not available because Ms Kawiti’s criminal offending occurred when seeking medical treatment for her injuries after being attacked. Self-defence may have been available had Ms Kawiti responded with defensive violence against her attacker immediately prior to, or while, she was under attack. It remains to consider whether the defence of duress of circumstances is available to Ms Kawiti. The Court of Appeal considered the availability of duress of circumstances in Kapi v Ministry of Transport (1991) 8 CRNZ 49. The facts of the case were that the defendant was convicted under s 65 of the Transport Act 1962 for failing to stop after an accident. The car he was driving struck a parked car that he did not see because of oncoming headlights. He did not stop to ascertain whether anyone was injured or any damage had been caused. The defendant said he continued to drive because he believed that he might be beaten up if he stopped. In fact no one had threatened him and there was no evidence that anyone was even present in the street at the time that the accident happened. An appeal was taken on a question of law as to the availability of the defence of duress of circumstances on these facts. In Kapi, the Court of Appeal said that it could determine the appeal on the grounds that: “When section 24 provides a defence of compulsion (or duress) where the criminal act is done under threat of death or grievous bodily harm from a person who is present when the offence is committed, we do not consider that section 20 can be said to preserve a common law defence of duress by threat or fear of death or grievous bodily harm from a person not present.” That duress by threats at common law does not survive the codification of that defence in s 24 is uncontroversial. However, to the extent that the Court of Appeal considered s 24 also to modify the common law defence of duress of circumstances, that cannot be correct. It is not necessary to conclude that s 24 is a legislative attempt to codify both duress by threats and duress of circumstances where those circumstances involve threats sourced in a human agent. Rather, the legislative intention was to codify the common law defence of duress by threats, leaving the more recent and less certain defence of duress of circumstances to continue to develop at common law. Not only is the distinction that was drawn in Kapi between human and non-human sources of threat unsupported by any common law authority, the consequences that follow from making such a distinction cannot have been intended. The distinction would leave defendants who are caught up in emergency situations created by other people, but who are not in standover situations, in a lacuna. These defendants, even when they fall squarely within the rationale for the self-preservation defences, will be left without access to either the common law defence of duress of circumstances or the defence of compulsion (duress by threats) set out in s 24. The interpretation taken in Kapi will be a particular problem for women who are entrapped in relationships with violent partners because the threat to which these defendants are responding is likely to be sourced in another person. The distinction drawn in Kapi therefore goes against the principle recognised by the Court in

R v Witika [1993] 2 NZLR 424, at p 4233, and given statutory expression in s 20, to the effect that: “Justice requires that no defence should be excluded unless it is clearly unavailable.” The restrictive legal requirements for compulsion set out in s 24 should not be used to justify a similarly restrictive approach to the common law defence of duress by circum- 5 stances. The difficulties for women entrapped in relationships with abusive partners in accessing the defence of compulsion were flagged in Accident Rehabilitation and Compensation Insurance Corporation v Tua and MacPherson DC, 18 Feb 1998 as requiring redress. In ACC v Tua the accused had filled in false ACC claim forms and was convicted of using a document to obtain a pecuniary advantage. Her partner regularly beat her and 10 forced her to do things she did not want to do, including making the false claims in issue. She had a head injury and functioned at the level of a 7 year old child. Despite this, she was unable to rely on the defence of compulsion because she could not satisfy the requirements of immediacy and proximity in s 24. Her partner had not made a specific threat and was not present every time she filled out a false claim. These facts are not atypical because intimate 15 partner violence is directed at controlling the person targeted even when she is not in the presence of the abuser. If it is effective, specific threats or the use of physical violence on any particular occasion may also not be necessary. In ACC v Tua the District Court Judge said at p 15; 20 “In my view the law is deficient in this case, as in New Zealand, there is no scope for negativing the specific intent formed on the basis of acts done in response to a grossly abusive and battering relationship. The present type of scenario is not uncommon in cases coming before the District Court in these type of cases …” The interpretation taken in Kapi means that rather than committing a low level offence by attempting to escape the person threatening violence, victims of intimate partner violence would be better to stand their ground and retaliate with defensive violence. This is because the only criminal defence available to them if they do not meet the limited criteria set out in s 24 is self-defence (s 48). However, I find that I am not bound by the Court of Appeal’s opinion in Kapi that the defence of duress of circumstances is confined to non-human threats. This view was expressed in obiter because the defence was not available on the facts in Kapi. The defendant Mr Kapi did not have “a belief formed on reasonable grounds of imminent peril of death or serious injury.” Indeed the Court of Appeal determined that it was unlikely that Mr Kapi even had an honest belief that he faced imminent death or serious injury. Even if I am wrong on this, Kapi is distinguishable on the facts. In Kapi the defendant committed the criminal offence (failing to stop after an accident) in order to avoid an attack from unknown persons at the scene of the accident. His offending was therefore in response to threats sourced in a human agent. That is not so on the present facts. Ms Kawiti was responding to a physical injury that was causing her unbearable pain—her dislocated shoulder. A dislocated shoulder is a medical condition and not a human agent. Her crimes were therefore not committed under the coercion of a threat sourced in another person. Rather, the fact that the other people present were dangerous simply limited her options for getting help. The general threat they presented to her was not the reason why she drove to get medical relief, it was simply the reason why they were not available to provide assistance in respect of her injuries. It follows from what I have said that the defence of duress of circumstances was available in principle to Ms Kawiti on this set of facts. I now turn to examine what the elements of that defence are.

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The elements of duress of circumstances The Court of Appeal in Kapi, after considering the English authorities, and referring to duress of circumstances as “necessity”, held at p 57: 5

“that a defence of necessity, if available in New Zealand, requires at least a belief formed on reasonable grounds of imminent peril of death or serious injury. Breach of the law then is excused only where there was no realistic choice but to act in that way. Even then the response can be excused only where it is proportionate to the peril.”

It is therefore appropriate in response to the second question to answer that the ele10 ments of duress of circumstances are those identified in Kapi and the subsequent decision of R v Lamont (Court of Appeal, Wellington, CA 442/91, 27 April 1992). These are: 1. 15

2. 3. 4.

The defendant has a genuine belief, on reasonable grounds, of the imminent peril of death or serious injury. The defendant’s action was in response to that perceived threat. The circumstances are such that the defendant had no realistic choice but to break the law. The breach of the law is proportionate to the peril involved.

There are three aspects of this defence that require further discussion given the facts 20 of this particular case. First, the facts of the present case raise the question of whether “serious injury” encompasses the unbearable pain experienced as a result of having a dislocated shoulder. The authorities are not clear on this. Bodily harm is defined in R v McArthur [1975] 1 NZLR 486, 487 (citing R v Donovan [1934] 2 KB 498) as something that “interferes with the 25 comfort or health of the victim.” Grievous bodily harm is simply bodily harm that is “really serious”; in other words, injury at the more serious end of the spectrum. In R v Moses CA 311/94, 15 December 1994, the Court of Appeal at [53] held that an injury can amount to grievous bodily harm even though it is not life threatening, dangerous or permanent, the victim does not require treatment and there are no lasting consequences. This would seem 30 to suggest that extreme pain can constitute grievous bodily harm because of the degree to which it interferes with the comfort of the victim. On the other hand, in Scatchard v R (1987) 27 A Crim R 136 the Court of Criminal Appeal for Western Australia said that bodily harm does not encompass the sensation of pain without an identifiable bodily injury. Scatchard is distinguishable on this set of facts 35 because the defendant did have a bodily injury and a dislocated shoulder could be classified as a grievous bodily injury. The issue here, however, is that the defendant was not acting to avoid an assault violent enough to dislocate her shoulder—which would almost certainly be acting under threat of grievous bodily harm—she is acting to avoid having to endure the pain of a serious 40 injury that has already been inflicted upon her. It cannot be the case that one is excused for avoiding the infliction of grievous bodily harm but not excused for attempting to address or alleviate the intense suffering that results once it has been inflicted. This would have the arbitrary result of giving the defendant a short window period when preventative action is excusable but, once having failed and 45 suffered the worst possible outcome, the defendant would then be expected to demonstrate super-human endurance in the face of unbearable suffering. It follows that “serious injury” in this context must encompass the pain of enduring serious injury. Second, the defence requires that the defendant have reasonable fear of imminent death or serious injury and have no realistic choice but to break the law. It is not p­ ossible 50 to undertake “objective” assessments such as these in a decontextualised way. Assessing

whether the defendant had reasonable grounds for believing that they faced imminent threat of serious harm and had no realistic choice but to break the law is dependent on knowing what the particular defendant’s circumstances and options for responding to those circumstances realistically were. When assessing the threat presented by, or the possibility of assistance from, another person the immediate circumstances must be interpreted in light of the larger context and the history of any relevant relationships. What is realistic or reasonable is not to be assessed on the basis of someone who occupies totally different life circumstances. The proverbial reasonable man is unlikely to be Maori, immersed in a Maori world view, and unlikely to be the victim of a serious physical assault committed by his female partner, encouraged by her family and associates. In the District Court it will be necessary for counsel to provide further information on, and the judge to consider, the relationship between Mr Nathan and Ms Kawiti—including its length, nature, and any history of violent or controlling behaviour. I find it implausible that an incident such as the one at the centre of this proceeding, involving severe violence within the bounds of an intimate relationship, would be a one-off event. Given that any immediate assistance available to Ms Kawiti had to come from Mr Nathan’s family this information is highly significant. In addition, further particulars as to the past incident that prompted Ms Kawiti to choose to sleep in the car, rather than the marae as would be the norm for such an occasion, would answer important questions as to her state of mind in the context of what was to transpire that evening. The benefit to Ms Kawiti of a consideration of the entirety of her relationship with Mr Nathan, as well as any history of historical trauma or victimisation, would be a more nuanced and realistic evaluation of what could be considered reasonable on her behalf. Maori customary law is also relevant in assessing the circumstances in which Ms Kawiti found herself and the choices that were available to her in responding to those ­circumstances. In Maori customary law an act of violence is now considered a breach of the tapu (the personal integrity and dignity) of the other. Violence perpetuated against a woman is particularly egregious due to women being “nga whare tangata” (the houses of humanity—a reference to their roles as mothers). This is relevant because it makes the violent assault on Ms Kawiti particularly transgressive of Maori cultural norms. That Mr Nathan’s family and associates both witnessed and failed to intervene during the assault, illustrates how far this situation was outside of Maori social norms and functions, further influencing Ms Kawiti’s appreciation of her choices at the time. Maori law conceptualises responsibility as a collective enterprise. While harm may be committed by an individual perpetrator, liability for that harm rests with the groups to which that person belongs—their whanau, hapu or iwi (family, sub-tribe or tribe)— depending on the nature and level of harm caused and the context in which it occurred. It follows that the terrible assault committed upon Ms Kawiti by Mr Nathan would be laid at the feet of his wider family. In the Maori conception of citizenship, persons from other places are designated as “waewae tapu” (sacred feet), meaning that they have no right of standing in the community. The host community is required to welcome visitors through ceremonial protocols, which establish the purpose for the visit and relate connections between the groups ­gathered. Once discharged, the relationship between hosts and visitors moves to another stage, where respective responsibilities are mutually accepted and understood. It follows that, as a manuhiri or visitor, Ms Kawiti had no standing at Mr Nathan’s marae because of the absence of the proper migration and hospitality protocols in relation to her. It is unclear on the evidence presented exactly how far through these protocols Ms Kawiti had progressed. Nevertheless, any failure to properly manage a visitor from “outsider” to “insider” status renders her effectively nameless in the community, where the usual processes of

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whakawhanaungatanga (relationship building) have not been extended to her. In these circumstances, Mr Nathan’s failure to introduce Ms Kawiti properly would likely be deemed the fault of his family because it is their responsibility to have raised and educated their son/grandson/brother/nephew/cousin to abide by the norms and protocols of their people. An analysis of Ms Kawiti’s situation through a Maori cultural lens provides an additional and important perspective through which to assess the “reasonableness” of her choices. Her outsider status meant that from a Maori point of view it would be considered unreasonable and unsafe to seek help from Mr Nathan’s family in the circumstances she was in. Third, although it is suggested in Simester and Brookbanks Principles of Criminal Law, Wellington, Brookers, 1998, para 11.3 that the issue of proportionality is decided by asking whether “a sober person of reasonable firmness sharing certain characteristics of the defendant, would have responded in like manner”, another view is that the issue of proportionality is not concerned with the overbearing of the defendant’s will. This is already dealt with in the second and third requirements set out above—that the defendant’s action was in response to the threat and that they had no realistic choice but to break the law. The requirement for proportionality is concerned instead with the balancing of harms, and requires that the criminal offending be no more harmful than the threat that was being avoided. Thus in Tifaga v Department of Labour [1980] 2 NZLR 235 (CA) it was said that necessity “has come to denote a situation where circumstances face a person not with no choice at all but with the choice between two evils so that he can hardly be blamed if he chooses the lesser.” In this instance the jury will need to decide whether a medical emergency outweighs several driving offences. Conclusion The answers to the questions stated by the District Court are as follows: 1.

30

2.

The defence of duress of circumstances is available to the defendant in a criminal prosecution pursuant to the Transport Act 1962. The ingredients of the defence do not include a requirement that the threat to which the defendant is responding has a non-human source. Otherwise the requirements are those set out by the Court of Appeal in Kapi v Ministry of Transport (1991) 8 CRNZ 49. Grievous bodily harm includes the continuation of such harm once injury has been inflicted. Questions answered accordingly.

26 Commentary on R v Wang Finding a Plausible and Credible Narrative of Self-Defence LEXIE KIRKCONNELL-KAWANA AND ALARNA SHARRATT

The Court of Appeal Decision Wang Xiao Jing was a Chinese immigrant woman who killed her husband Li Jing Wah while he was in a drunken sleep. Earlier that night, Mr Li had threatened Mrs Wang that he would kill her and her sister who lived with them. He had also threatened to blackmail another sister, who lived in Hong Kong, during an angry telephone conversation with that sister. Mrs Wang was charged with murder, but was convicted of manslaughter after successfully relying on the partial defence of provocation. She was sentenced to five years’ imprisonment. Mrs Wang appealed both the conviction and sentence. The sole ground for the appeal against the conviction was that the trial judge erred in law in refusing to put selfdefence to the jury.1 Self-defence is a statutory defence, set out in s 48 of the Crimes Act 1961 (NZ): ‘Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use’.2 The defence contains both a subjective test (‘circumstances as he or she believes them to be’) and an objective test (‘such force as … is reasonable to use’). The Court of Appeal agreed with the trial judge’s ruling and reasons.3 Applying the ­principles from R v Kerr4 and R v Tavete,5 the Court observed that it is for the judge to decide whether self-defence should be put to the jury, and that it should be left to the jury to consider, ‘unless it would be impossible for the jury to entertain a reasonable doubt that the accused had acted in defence of himself or another within the terms of s 48’.6 The Court agreed with the judge’s assessment that ‘it would be impossible for the jury to ­entertain

1 

R v Wang [1990] 2 NZLR 529 (CA) 530. Crimes Act 1961, s 48. 3  Wang (n 1) 535. 4  R v Kerr [1976] 1 NZLR 335 (CA). 5  R v Tavete [1988] 1 NZLR 428 (CA). 6  Wang (n 1) 534. 2 

498  Lexie Kirkconnell-Kawana and Alarna Sharratt a reasonable doubt on that point’, saying: ‘We are satisfied that no ordinary reasonable person who knew the kind of man that the husband was and of his threats to his wife and sister, and blackmail of her family would, while he was unarmed and in a drunken sleep, have believed it necessary to kill him’.7 One of the difficulties with the case is that the Court accepted that Mrs Wang’s view of the circumstances was that she, or members of her family, were at risk from her husband, and that ‘in the state she was in, the only course she could think of was to kill her husband’.8 However, having identified the circumstances as she believed them to be (the subjective limb of s 48), the Court focussed on the objective limb, that is, the reasonableness of the force used, in those circumstances. The Court summarised the other reasonable courses of action available to Mrs Wang: ‘Her sister and her friend Susan were both in the house. She could have woken them and sought their help and advice. She could have left the house taking her sister with her in the car which was available. She could have gone to acquaintances in Christchurch or to the police’.9 On that basis, they dismissed the appeal, even though the defendant did not honestly believe any of those options were available to her, in the circumstances that the Court accepted existed. Criticism of the decision includes challenging this conclusion, which seems to import an objective test into the subjective limb of s 48.10 The Court took particular issue with Mr Li being intoxicated, asleep, and tied up at the time he was killed, comparing this to Kerr, where the accused produced a knife when threatened with an attack with a bottle. In 1989, the paradigmatic self-defence scenario was a pub brawl or similar confrontation between male strangers. Kerr illustrates this well, with the Court describing the defendant as reacting ‘almost instinctively’.11 The law was (and arguably still is) ill-equipped to deal with acts of violence that do not sit neatly within this patriarchal worldview.12

Difficulties with Self-Defence The drafting of s 48 suggests it is available to both male and female defendants yet it has been interpreted in a way that limits its availability to women who kill in response to domestic violence.13 A critique of the Court’s approach to the subjective and objective limbs follows.

7 

ibid 535. ibid 534. 9 ibid. 10  See, eg, N Seuffert, ‘Battered Women and Self-Defence’ (1997) 17 New Zealand Universities Law Review 292; F Wright, ‘The Circumstances as She Believed Them to Be: A Reappraisal of Section 48 of the Crimes Act 1961’ (1998) 6 Waikato Law Review: Taumauri 109; S Beri, ‘Justice for Women Who Kill: A New Way?’ (1997) 8 ­Australian Feminist Law Journal 113. 11  Wang (n 1) 533. 12  For a recent critique of the law in this area see: New Zealand Law Commission, Understanding Family ­Violence: Reforming the Criminal Law Relating to Homicide (Wellington, NZLC R139, 2016). 13 ibid 65. See also: New Zealand Law Commission, Some Criminal Defences with Particular Reference to ­Battered  Defendants (Wellington, NZLC R73, 2001) 9. 8 

R v Wang—Commentary 499

What Were the Circumstances as Mrs Wang Believed Them to Be? The authors had the advantage of having access to the court file, including the Notes of Evidence presented before the judge. At trial, Mrs Wang described being married under duress: Mr Li stalked her, physically assaulted her and threatened to kill her family if she did not marry him. Their marriage in China was also characterised by physical and emotional abuse; numerous injuries left her hospitalised. When she left him and moved to Japan, he followed her, continued to threaten her, and forced her to remarry him. The abuse continued after they moved to New Zealand and their son was born. This abuse was rarely witnessed by others, including her sister, who had moved to New Zealand to help Mrs Wang at home. Some friends and associates gave evidence that Mr Wang was dominating and insulted Mrs Wang in their presence, while others suggested that they did not take an interest in the nature of the couple’s relationship. On the rare occasions that Mrs Wang did disclose experiences of abuse and feelings of helplessness, friends said that they had told Mrs Wang to endure it. Other witnessed Mr Wang make threats and imply, in Mrs Wang’s presence, that he could easily kill and dipose of a body in New Zealand.14 In the original judgment, the Court minimised the extensive history of abuse, reducing the description of the harm within the relationship to a single reference: that it was a ‘loveless and coercive marriage’.15 The Court noted that the trial judge had the ‘advantage of fully appreciating the matrimonial background … after seeing and hearing all the evidence, in particular that given by the accused herself ’.16 Despite this, the trial judge and the Court of Appeal focussed largely on Mr Wang’s threats on the one night, and Mrs Wang’s violent reaction to these threats, in isolation. The Court also gave very little, if any, consideration to Mrs Wang’s circumstances as not only a woman in an abusive relationship, but as an immigrant woman; a Chinese woman living in New Zealand with limited access to legal or social support systems, and experiencing what was described as a ‘severe depressive illness’.17 These factors must have shaped her view of the circumstances in which she found herself, including her view of the availability of other options. Writing in the early 1990s, Suma Pillai suggested Asian immigrant and refugee women were likely to stay longer in abusive relationships due to cultural and structural constraints, including (among many factors) a lack of knowledge of New Zealand systems, mainstream community agencies lacking in cultural familiarity to understand their problems, and ­language barriers limiting access to information and services.18 Shakti Asian Women’s Support Group Trust, the first domestic violence support service catering to the specific needs of Asian women, was not set up until 1995, and even then was only a small organisation, based in Auckland.19 Shakti New Zealand now has member groups and organisations throughout New Zealand, but in 1989 Mrs Wang had no access to any such support.

14 

R v Wang (HC Christchurch T40/88 Notes of Evidence, 3 March 1989) 22–26. Wang (n 1) 540. ibid 541. 17  ibid 532. 18  S Pillai, ‘Domestic Violence in New Zealand: An Asian Immigrant Perspective’ (2001) 36 Economic and Political Weekly 965, 971. 19 shakti-international.org/about-us-nz/. 15  16 

500  Lexie Kirkconnell-Kawana and Alarna Sharratt The New ­Zealand police force in 1989 was largely made up of Pākehā or Māori officers, with few other ­ethnicities represented. It would be highly unlikely that frontline staff would have had the level of cultural sensitivity, translation skills or indeed understanding of family violence dynamics needed to respond adequately to her complaint, if she had made one. The Court referred to the psychiatric report from expert witness Dr Ding, in which he reported that ‘being socially isolated in New Zealand and not conversant with social opportunities or avenues for help had an adverse effect on [Mrs Wang]’.20 This was referred to in relation to Mrs Wang’s depressive illness but must surely be relevant beyond this. It is unclear why, given this, there was no acknowledgement of the impact her social isolation might have had on her understanding of what options were open to her.

The Availability of Other Options—Objective or Subjective Inquiry? There has been considerable academic attention (post-Wang) given to whether a defendant’s belief about the availability of other options should be considered subjectively or objectively. Nan Seuffert sets out the relationship between the subjective/objective inquiry as:21 First, the accused is entitled to have the jury consider the circumstances as he or she believed them to be. On the face of the statute this appears to be a purely subjective test, without the requirement that the accused’s belief be reasonable or objectively accurate. The belief need only be honest … The second limb of the New Zealand test requires that the force used by the accused be reasonable (having regard to the circumstances as the accused believed them to be).

If the second/objective limb is limited to the reasonableness of the force used, in those (subjectively assessed) circumstances, then (it is argued) the availability of other options should be considered as part of the first limb. As previously highlighted, neither the trial judge nor the Court gave much weight to the evidence of the prolonged abuse by Mr Li or the impact this might have on Mrs Wang’s perception of her alternative options. Assessing the defendant’s use of force as if she could make use of all of the options that were theoretically available has been said to be ‘contrary to the words and the spirit of section 48’.22

Imminence, Pre-emptive Strike and the Use of a Weapon A key factual inquiry relating to the assessment of the reasonableness of the force used is the ‘imminence’ of the threat. The Court framed the issue of imminence narrowly, as requiring an immediate threat. This approach is inconsistent with other jurisdictions, including ­Canada and Australia.23 It has been argued that in jurisdictions where ‘­imminent’ is ­interpreted to mean ‘immediate’, ‘it is less likely that juries will hear evidence on the

20 

Wang (n 1) 540. Seuffert, ‘Battered Women and Self-Defence’ (n 10) 299. 22  Wright, ‘The Circumstances as She Believed Them to Be’ (n 10) 109. 23  Seuffert, ‘Battered Women and Self-Defence’ (n 10) 313. 21 

R v Wang—Commentary 501 ­ istory of the deceased’s violence toward the accused for the purpose of determining h whether the accused reasonably apprehended death’.24 In 2016, the New Zealand Law Commission stated that the most concerning aspect of self-defence in regards to victims of family violence who seek to rely on it, is the requirement for a defendant to be responding to an ‘immediate’ threat.25 The approach taken by the Court was not the only approach open to it. At almost the same time that Wang was being heard, the Canadian Supreme Court in R v Lavallee26 rejected the idea that it is unreasonable to apprehend death or grievous bodily harm until physical assault is in progress. The Court in Lavallee acknowledged an abused woman’s ability to predict the onset of violence and suggested that requiring the woman to wait until the threat is actualised—waiting for the threat of the uplifted knife—is sentencing her to ‘murder by instalments’.27 The Court in Wang cited the trial judge’s observation that while a pre-emptive strike might be consistent with self-defence, ‘[h]ere there is no suggestion that the victim had a weapon, nor had made any move to suggest the intended use of any object as such’.28 The judge compared this with the facts in a 1988 Court of Appeal case Ranger,29 in which ‘it was open to the jury to conclude that the accused thought the lives of herself and her son were in peril because the deceased … might attempt to shoot them with a rifle which … was near at hand’.30 Focusing on the proximity or otherwise of a weapon means ignoring the countless deaths of women at the hands of their abusers that do not require the presence of a traditionally lethal weapon. Numerous studies have found that abusive men can physically harm and kill women using only their hands, fists, and feet as weapons.31 In the Fourth Family Violence Death Review Committee Report,32 only seven of forty killings of women by male primary aggressors were by shooting. Seventeen involved no weapon at all.33 The amount of force that is reasonable is generally a question for the jury to determine in light of the circumstances. The appropriateness of the use of a weapon to defend against a potentially lethal attack from an unarmed physically stronger aggressor should be part of this determination by the jury.34

Duty to Retreat Related to the imminence inquiry, and the reasonableness of the force used, is the question of whether there is a duty to retreat from an attacker. The Court considered it was 24 

ibid 312. Law Commission, Understanding Family Violence (n 12) 8. 26  R v Lavallee [1990] 1 SCR 852, 1990 CanLII 95 (SCC). 27  ibid 883. 28  Wang (n 1) 535. 29  R v Ranger (1988) 4 CRNZ 6 (CA). 30  R v Wang (HC Christchurch T40/88 Transcript of Rulings of Eichelbaum J During Trial, March 1989) 11. 31  Seuffert, ‘Battered Women and Self-Defence’ (n 10) 317. 32  The Family Violence Death Review Committee is an independent committee that reviews and advises the Health Quality & Safety Commission on how to reduce the number of family violence deaths. 33 Family Violence Death Review Committee, Fourth Annual Report: January 2013 to December 2014 (­Wellington, Health Quality & Safety Commission 2014) 47. 34  Seuffert ‘Battered Women and Self-Defence’ (n 10) 317. 25 

502  Lexie Kirkconnell-Kawana and Alarna Sharratt ­ nreasonable as a matter of law not to retreat in the face of a threat where there are ‘alternau tive courses of action open’.35 This inquiry is not particularly helpful in the case of abusive relationships. Coercive and controlling tactics by abusers mean a victim often faces constant and on-going threat; it is almost never a discrete incident of violence or threat immediately preceding a defensive use of force.36 It has been suggested that: ‘Women living with violence become experts on their situation. Such women rarely retaliate but when they do it is because somehow they perceive the situation as more dangerous than other beatings’.37 Further, it is now a commonly accepted fact that one of the most deadly times for a woman experiencing abuse is when she leaves her abuser. Mrs Wang’s expertise in her own experience of abuse and other factors prevented her from seeking help. She also did not know how to drive, was financially dependent (as Mr Wang controlled their finances), and was not offered support when she did on occasion reach out to others about her experiences of isolation, fear and abuse.

The Feminist Judgment The feminist judgment has been written as a dissenting opinion to the Court of Appeal judgment. Midson J’s dissent diverges from the reasoning of the Court in three main ways: (1) she is careful not to conflate the objective and subjective tests; (2) she avoids the importation into s 48 of a requirement that the threat must be immediate; and (3) she analyses and applies the evidence in a different way, giving more weight to the context of the ‘coercive and loveless’ marriage. The imagined minority decision concludes that the jury should have had the opportunity to decide whether the defendant’s narrative was plausible or credible, and emphasises the very real likelihood that Mrs Wang may not have had other reasonable courses of action available to her. Midson J emphasises that the subjective view of the circumstances must include both the threat of serious harm and any alternative courses of action known to be available to the accused at that time. This means that if Mrs Wang honestly believed that her husband was going to kill her or her family members, even at some undetermined point, and she believed there were no other alternative courses open to her, s 48 provides her with a defence—or at least provides a plausible narrative to go to the jury. Given her belief, the feminist judge accepts that Mrs Wang was justified in responding to the threat to her life and those of her family with a pre-emptive strike. As to the reading in of a requirement that there be an immediate threat to justify killing in self-defence or defence of another, Midson J agrees with the trial judge’s ruling that imminence of danger is a question of fact and degree, not a requirement of law. Taking this approach would mean that the inquiry is not the meaning of immediate, but as to

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Wang (n 1) 536. Law Commission, Understanding Family Violence (n 12) 75. 37 J Tolmie, ‘Pacific-Asian Immigrant and Refugee Women Who Kill Their Batterers: Telling Stories that ­Illustrate the Significance of Specificity’ (1997) 19 Sydney Law Review 472, 509. 36 

R v Wang—Commentary 503 the belief of the accused that there is a situation requiring defensive force. As the feminist judge points out, whether the force used was necessary is a matter for the jury—this is the objective part of the test. The feminist judge carefully considers the accused’s story, and she tells some of that story in her dissent. Instead of expecting her narrative to match those in previously successful self-defence cases, Midson J focusses on the realities of Mrs Wang’s life; on her lived experience. This approach does not compromise the judge’s impartiality. Section 48 expressly requires consideration of a defendant’s subjective experience—it is the starting point in assessing the reasonableness of any act of self-defence. The feminist judge’s perspective allows her to empathise with Mrs Wang’s situation in a way the other (all male) members of the bench were less able to do. By interpreting imminence widely, and by acknowledging the possibility that the pre-emptive strike may have in fact been necessary to preserve the lives of Mrs Wang and members of her family, the imagined minority judgment understands the actual dynamics of family violence, based on research available at that time. The feminist judge does not take a blinkered view of the violence. She does not minimise the threats made by Mr Li or the cycle of abuse perpetuated by Mr Li. The feminist judge specifically notes that Mr Li had upcoming flights to Hong Kong scheduled, making it even more plausible that he did plan to act on the threats he made to harm Mrs Wang’s family; a point ignored by the trial judge and the Court. Having considered the evidence presented by Mrs Wang and by others, Midson J concludes that there is a plausible and credible narrative of self-defence such that the defence should have been left to the jury. She states that it is not for the Court to make a ruling on the facts as to whether Mrs Wang did honestly believe she was in a situation justifying the use of force, nor whether that force was reasonable. To do so would be to usurp the function of the jury. In coming to her conclusion, the feminist judge compares the evidence in this case with that in Tavete, in which the Court ruled there was a plausible narrative of the accused acting in self-defence based solely on the accused’s word (which included an inconsistent prior statement). In this way, Midson J embodies the maxim of equality before the law; Wang (a woman) is given the same opportunity to have her narrative believed and assessed by the jury as did Tavete (a man). The feminist approach in this judgment has not required precedent to be distinguished—in fact the judge urges the Court to follow the precedent set in those cases where male defendants succeeded in having self-defence put to the jury. Her approach is also consistent with the recommendations of the Law Commission in 2016. Had the Court of Appeal taken the approach of the feminist dissent—a judgment that took a broader view of what an imminent threat might look like, showed deference to the defendant’s integrity and lived experience, and opened up the possibility of s 48 being available to those experiencing abuse—it would almost certainly have reached a different conclusion. In doing so, it could have helped develop the law of self-defence in a way that would have rendered significant help to defendants in similar situations to Mrs Wang. There would have been no need for two law reform projects in the subsequent years.

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R v Wang

10 Court of Appeal Wellington 25 September; 27 October 1989 Richardson, Casey, Bisson and Midson JJ 15

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MIDSON J. At the outset, I extend my condolences to Li Jing Wah’s family for their loss. This is a tragedy for his family, which should not be forgotten despite the allegations about his conduct heard in evidence in this case. I also acknowledge that the accused, Wang Xiao Jing, and her family, including her son, will also face challenges and hardships as a result of the legal consequences of this case. Wang Xiao Jing (Mrs Wang) killed her violent and abusive husband, Li Jing Wah (Mr Li). On 20 July 1988, after he made threats to kill Mrs Wang and members of her family, and also to blackmail them, a drunk Mr Li fell asleep. Mrs Wang tied him up and stabbed him. She was convicted of manslaughter after the jury was directed on the availability of the partial defence of provocation. She appeals her conviction on the basis that the trial Judge should have put self-defence to the jury. The issues for this Court to decide are first, whether there is a credible or plausible narrative which might allow the jury reasonably to find Mrs Wang acted in self-defence; and second, whether a sentence of five years imprisonment for manslaughter was excessive. Because I would allow the appeal on the first issue it is unnecessary for me to decide the sentencing appeal. However, I do have an observation about the basis upon which Mrs Wang was sentenced, which I will refer to after considering the appeal against conviction. I have had the advantage of reading the draft judgment of Bisson J for the majority. For reasons set out below, I disagree with my learned colleagues that there was no plausible or credible narrative of Mrs Wang having acted in self-defence or defence of another. I find that self-defence should have been left to the jury. Mrs Wang was born in China. She married Mr Li, the deceased, in 1984 and they were divorced in 1986. However, they remained in a relationship and ultimately moved together to New Zealand in 1987, when they remarried. Mrs Wang gave birth to a son on 10 April 1988. A probation report prepared for Mrs Wang’s sentencing describes the relationship between her and her husband as loveless and coercive, particularly following the birth of their son. The probation report states that Mrs Wang suffered from a major depressive ­illness, ­compounded by her social isolation in New Zealand and her lack of awareness of social opportunities or avenues for help. Importantly, in sentencing Mrs Wang the Judge ­acknowledged that the killing arose from a weakening of the accused’s ability to reason, leading her to perceive that she was in a desperate situation with no obvious alternatives. On the evening of 19 July 1988 Mrs Wang and Mr Li, along with Mrs Wang’s sister, Wang Xiao Xuan, and two friends, Xheng Mei and Lee Ping Chong, had a small celebration in honour of the 100th day since their son’s birth. At that time Mrs Wang was suffering from a major depressive illness, and had recently been hospitalised for gallbladder

R v Wang—Judgment 505 disease which had manifested during her pregnancy. Wang Xiao Xuan gave evidence that her sister, the accused Mrs Wang, was not well in the evening, did not eat at the table with the other guests, and only drank a small amount of beer later in the evening. Mr Li had a lot to drink and vomited. Before going to bed he told Mrs Wang to call her sister in Hong Kong and ask that money be sent to him. Mrs Wang gave evidence, corroborated by 5 Yuen Hing Lai (the Hong Kong sister’s husband), that in the calls to Hong Kong Mr Li was abusive and threatening, that he demanded money, threatened to blackmail the Hong Kong family and threatened to kill Mrs Wang and her sister, Xiao Xuan, who Mr Li described as being now in “his hand”. He also said it was easy to have someone killed in Hong Kong. Lee Ping Chong gave evidence that at the time he made those 10 threats, Mr Li had flights to Hong Kong ­scheduled for the subsequent weeks. In the High Court at Christchurch, the trial Judge, in his ruling on whether self-defence should be left to the jury, said: “The only view of the evidence open is that the accused was in no immediate 15 danger. I accept that imminence of danger is a question of fact and degree and not a requirement of law. And further that a pre-emptive strike, even with a knife, may in particular circumstances qualify for consideration as self-defence. … Here there is no suggestion that the victim had a weapon, nor had made any move to suggest the intended use of any object as such. The contention on behalf of the defence has to go the 20 length of asserting that a jury could reasonably find that an accused under no immediate threat or danger, however elastic an interpretation is given to that concept, who had alternative courses open none of which she had tried or seemingly considered, was or at least might reasonably be justified in deliberately killing the other party with a knife. To accede to that proposition in these circumstances would I think be close to a return 25 to the law of the jungle. Giving the jury every latitude as to taking the most favourable view of the accused’s honest even if mistaken view of the circumstances, no jury could properly regard such a reaction by the accused to be a reasonable one. It is one of those cases, no doubt relatively rare, where I believe it would be impossible for the jury to entertain a reasonable doubt on the point.” 30 The majority upholds the trial Judge’s decision, and his reasoning. There are three points on which I diverge from the reasoning of the majority. The first is on their conflation of the objective and subjective tests in s 48; the second is their importation into s 48 of a requirement that the threat must be immediate; and the third is the view they have taken 35 of the evidence. Section 48 of the Crimes Act 1961 provides: “48. Self-defence and defence of another—Every one is justified in using, in the defence of [herself] or another, such force as, in the circumstances as [she] believes them to be, it is reasonable to use.”

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In New Zealand, the defence of self-defence is therefore comprised of a hybrid subjectiveobjective test. Self-defence should be put to the jury where there is a credible or plausible narrative which might lead a jury to entertain the reasonable possibility that the accused was acting in self-defence: R v Kerr [1976] 1 NZLR 335; R v Tavete [1988] 1 NZLR 428. To be entitled to an acquittal on the basis of self-defence, the prosecution must prove 45 beyond reasonable doubt that Mrs Wang did not act in defence of herself or others. In other words, the prosecution must prove that she did not have an honest belief that she faced a situation involving a threat of sufficiently serious harm (subjective test) and/or that the force used in that situation was unreasonable (objective test).

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As to the first point, the majority find the relevant question to be whether it was reasonable in the circumstances (as the accused believed them to be) to use the force which she used in defence of herself and her sister. The majority conclude that “no ordinary reasonable person who knew the kind of man that the husband was and of his threats to his wife and sister and blackmail of her family, would, while he was unarmed and in a drunken sleep, have believed it necessary to kill him”. With respect, that is not the test provided for by s 48. The question is whether the force used against Mr Li was reasonable in the ­circumstances as Mrs Wang believed them to be, not whether it was reasonable to use force. The subjective view of the circumstances must include both the threat of serious harm and any alternative courses of action known to be available to the accused at that time. I have reached this conclusion based on a strict reading of s 48 together with the Criminal Law Reform Committee’s recommendation (Report on Self Defence (1979) at p 9) that a subjective test should be applied in determining the accused’s belief as to the facts, but an objective test in assessing her response to those facts (in other words, the force used). In its Report on Self Defence, the Criminal Law Reform Committee also took the view, with which I agree, that whether the force used was necessary is a matter for the jury and does not depend upon what the accused thought was necessary (at p 9). In terms of the threat in this case, it was not just to blackmail the Hong Kong family. There had also been express and implied threats to kill Mrs Wang, her sister living with them in Christchurch, and the Hong Kong family. If Mrs Wang honestly believed Mr Li was going to kill her and/or her family, even at some undetermined point, perhaps even as early as the next morning, it may have been reasonable (in the sense of both n­ ecessary and proportionate) to use force as and when she did to prevent that happening. This use of force before the foreseen attack is referred to in the majority judgment and other d­ ecisions as a “pre-emptive strike”. If Mrs Wang believed there were no other alternative courses open to her but to attack “pre-emptively” then in those circumstances I am of the view that she is justified in acting as she did. Mr Li could have awoken at any time and ­carried out his threat, and Mrs Wang would have been unlikely to have successfully defended ­herself at that time. But s 48 provides her with a defence even if she was mistaken as to the circumstances. That is the very essence of the subjective test in the criminal law—that an honest, albeit mistaken, belief about certain facts negates the mens rea for an offence: R v Metuariki [1986] 1 NZLR 488. There is no requirement that the mistake be a reasonable one, which is consistent with the purely subjectivist approach shown in the Criminal Law Reform Committee’s Report. As to the second point, courts have traditionally read in to s 48 a requirement that there must be immediacy of life-threatening violence to justify killing in self-defence or defence of another. However, there is no explicit reference in s 48 to the requirement of an immediate threat. This common-law gloss has been used to assess the reasonableness of the response. But even accepting this gloss on s 48, “immediacy” is in fact a relative concept and entirely dependent upon the circumstances. In some contexts, it may mean “promptly” or “straight away”; in other contexts, it may mean “at the first reasonable opportunity”. It was accepted by the trial Judge that imminence of danger is a question of fact and degree, not a requirement of law and I agree with his ruling on this point. What is required, in the context of the subjective test in s 48, is that the accused honestly believes there is a situation requiring defensive force. Section 48 then requires that the defensive force actually used must be reasonable, in the sense of being both necessary in the circumstances as the accused believes them to be, and proportionate to the threat. On the third, and final, point, the question for this Court to decide is whether there is a credible narrative of self-defence, sufficient to be left to the jury. Thus, it is necessary to

R v Wang—Judgment 507 consider the evidence in order to determine the appeal. In R v Kerr [1976] 1 NZLR 335 at p 340 this Court held that: “It is well settled that when a judge has to rule whether there is sufficient evidence to justify a defence of self-defence being submitted to a jury he [or she] must consider the matter on the view of the evidence most favourable to the accused.” In giving evidence the accused said that she “had never been so angry and [had] never been so frightened” and that she “had to kill him, there was no other way”. The fact that she may also have been motivated by anger, as well as self-preservation, does not negate self-defence. Dr Ding, a psychiatrist and Superintendent of Sunnyside Hospital, gave evidence for the accused. He said that Mrs Wang was suffering from a major depressive illness at the time of the killing. He said that the depression and associated feelings of despondency and hopelessness would drastically reduce her ability to deal with stress and that, regardless of the reality of the situation, she would have honestly believed that her husband’s threats would be carried out and that she had to do something to prevent that from happening. In cross-examination, Dr Ding said that Mrs Wang would have been susceptible to taking literally any threats made by her husband and would have been preoccupied with survival for her family and herself. He added that, “[i]n that state the only thing she could do was to, at that moment in time, kill her husband”. This evidence supports Mrs Wang’s claim that she did honestly believe Mr Li’s threats would be carried out. Mrs Wang’s evidence about the ongoing violence and threats she faced is also corroborated by other witnesses. Mr Lai, Mrs Wang’s brother-in-law in Hong Kong, overheard most of the telephone conversation between the deceased and Mrs Wang’s sister in which the deceased threatened to kill Mrs Wang and her sister who lived with her, and also that he could employ people to kill someone in Hong Kong. Mr Xhao, who had known the deceased from when they lived in Beijing and who also knew Mrs Wang, gave evidence that he had taken Mrs Wang to hospital after she had suffered an ear injury, caused by the deceased’s assault on her. Mr Xhao also gave evidence of witnessing violence by the deceased. Ms Xheng testified that she heard the deceased’s remarks about how easy it would be to kill someone in New Zealand, and that his comments frightened her. Furthermore, Mrs Wang’s evidence as to her state of mind is supported by that of Dr Ding, as outlined above, and in sentencing Mrs Wang, Eichelbaum J noted that Mrs Wang perceived herself as being in a situation of desperation and apparent lack of alternatives. As noted by the majority, she was not conversant with social opportunities or avenues for help. The question for this Court is essentially the same as that to be determined by the trial Judge, namely the threshold question about sufficiency of evidence. It is not for this Court to make a ruling on the facts as to whether Mrs Wang did honestly believe she was in a situation justifying the use of force, nor whether that force was reasonable. Those are questions for the jury and we cannot usurp their function in that regard. Based on the evidence of the accused herself, Dr Ding, Mr Lai, Mr Xhao, and Ms Xheng, I am prepared to answer in the affirmative: there is a credible narrative of self-defence sufficient to be left to the jury. On the evidence, it would not be impossible for a jury to entertain a reasonable doubt as to whether Mrs Wang was acting in self-defence. Mrs Wang honestly believed that her husband would carry out his threats to kill or cause serious injury to herself and her ­family. She was a Chinese immigrant to New Zealand, she was suffering from a major depressive illness, she lived within a coercive relationship, was socially isolated and did

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not believe she had any other avenues to escape her husband. She gave evidence that he made all the decisions and she was not even to use the phone without his permission. She said she knew she could not leave him as he would never let her go, and he made threats against her life on a daily basis. As was observed by both the trial Judge and the majority, Mrs Wang was socially isolated and not aware of avenues for help. It is paradoxical, at the least, to then suggest she did have options available to her. Furthermore, she lived with Mr Li—she knew better than anyone what Mr Li was capable of and whether he could carry through with his threats. Although he was asleep when he was killed, Mrs Wang honestly believed he could have woken at any time and carried out his threats. In those circumstances, it was necessary and proportionate to tie him up and kill him, before he followed through on his threats to kill her or her family. Applying the law in this way is not a return to the law of the jungle, as Eichelbaum J put it. Rather it is giving due weight to the subjective element of s 48 which requires that the accused honestly believes there is a threat of serious harm. If Mrs Wang had not taken those steps to defend herself and others, it is highly plausible that they would have been on the receiving end of serious violence. In coming to this conclusion, I have compared the evidence in this case with that in R v Tavete [1988] 1 NZLR 428. It was held in that case that self-defence should have been put to the jury (despite trial counsel’s express disavowal of the defence). The facts of R v Tavete were as follows. The accused, Tavete, had stolen money from a woman named Suzana Utu Pevelise—Utu for short. Utu recovered the money but the following day Tavete went back to her house. Tavete said that his motivation was to apologise to Utu, but he armed himself with a knife and a crowbar (allegedly because he was scared that Utu was going to give him a “hiding” and also to protect himself from her neighbour’s dog). Before entering the house, he took off his shoes and socks and put them under the house. In his police statement, he said this was so as to not make any noise, but in evidence he said he took them off before getting to the house where the dog was, because his shoes were loose and would have prevented him from evading the dog. When Tavete entered the house, he was confronted by Utu and in the ensuing struggle he stabbed her twice. Tavete testified that he dropped the crowbar when Utu pushed him. She then took the crowbar and hit him, and it was only after that that he stabbed her the first time. Tavete said he stabbed her a second time accidentally when they both fell over. Utu died and Tavete was convicted of murder. The question on appeal was the same as in the instant case, namely whether the jury should have been directed on self-defence. In delivering the judgment of the Court, which relevantly included two of my learned colleagues on this bench, Somers J observed that the question of whether there was material on which a jury could reasonably find that Tavete acted in self-defence largely turned on Tavete’s statement in evidence that “I just think about stab to stop her hitting me” (sic). As I have already observed, it was not for the trial Judge in Tavete to determine whether Tavete was acting in self-defence; it was whether there was a plausible narrative of him so acting. In comparison, I suggest that the evidence in the present case of self-defence is far stronger than that in Tavete which, in my view, created an implausible narrative. Tavete went to the house already armed with a weapon. He took off his shoes before going into the house (and he gave evidence inconsistent with a prior statement about why he did so). Indeed, the only evidence the Court had to support self-defence was Tavete’s statement. By contrast, in this case, Mrs Wang’s evidence about the ongoing violence and threats she faced is corroborated by other witnesses. This Court ought to follow the precedent set down in Tavete and Kerr. The evidence in this case, on the view most favourable to the accused, creates a plausible narrative of her

R v Wang—Judgment 509 acting in self-defence. It seems to me inherently unfair that a court would believe the word of one man, such as Tavete, but is not prepared to give weight to the words of a woman, which are supported by the evidence of others. In sentencing Mrs Wang to five years imprisonment, Eichelbaum J referred to Mrs Wang’s position that she still felt she had no option but to kill Mr Li and was disturbed 5 that this indicated an absence of contrition for the killing. I would take another view of Mrs Wang’s stance. Mrs Wang’s evidence at trial was that she “had to kill him, there was no other way”. The fact that she still maintains that position is not evidence of a lack of contrition or an aggravating factor but rather is supportive of the finding that she did honestly believe she was in a situation of peril in which killing Mr Li was her only option. 10 I would allow the appeal against conviction, quash the conviction, and order a retrial so that the defence of self-defence may be put to the jury. Appeal dismissed.

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Sentencing

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Commentary on R v Shashana Lee Te Tomo The Truth About Sentencing Māori Women: Giving Context to the Meaning of Mana Wahine LINDA HASAN-STEIN AND VALMAINE TOKI

Preface It has been a privilege to write about the challenges faced by this young woman. While it is true that our commentary and judgment analyse the very complex realities of Shashana Te Tomo’s life, it is with the utmost respect for her mana and belief in her potential as a Māori woman that we offer our comments.

Introduction In 2012, a young Māori woman named Shashana Lee Te Tomo was sentenced in the High Court Rotorua, under ss 71 and 98A of the Crimes Act 1961 (NZ), for being an accessory after the fact to participating in an organised criminal group known as the Mongrel Mob. Shashana was sentenced to four months’ home detention and 100 hours of community work. In sentencing Shashana, the Judge strongly recommended that she did not associate in the future with members of the Mongrel Mob. At the time of sentencing, however, Shashana was seven-months pregnant and the father was a Mongrel Mob member, and her brother and ex-partner were patched members of the same gang.1 It was difficult to envisage how Shashana could possibly comply with the sentence requirements without relinquishing several fundamental human rights, such as the right to family life and the right to culture.2 1  A ‘patched’ member is one who has been considered loyal and trustworthy enough to be a member of the gang. The process to become ‘patched’ often involves initiations to demonstrate loyalty and trust. The gang is viewed as a surrogate family for patched members. 2  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 27; New Zealand Bill of Rights Act 1990 (NZ), s 20.

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514  Linda Hasan-Stein and Valmaine Toki

Mana Wahine

The rewritten sentence deals with Shashana in a manner that seeks to uphold her fundamental human rights with a form of sentencing that reflects her cultural experience. ­Feminist judge Toki J sentences Shashana to an 18-month community programme on her local marae. Before considering the rewritten judgment, this commentary reflects on the role and development of indigenous sentencing jurisprudence in New Zealand; a reflection that highlights the manner in which patriarchal colonialism and post-Treaty laws have affected Māori women’s position in society today.

Sentencing Principles: The Oppression of Mana Wahine Through the Lens of Patriarchy and Colonialism Hūtia te rito o te harakeke kei hea te kōmako e kō? Tear the heart of the flax and where will the bellbird feed?

Imprisonment rates in New Zealand are growing rapidly with large numbers of Māori women in particular finding themselves in a state of serial incarceration. Women and indigenous peoples have experienced rapidly expanding imprisonment rates over recent decades3 with Māori women forming the most over-represented group in New Zealand prisons.4 While Māori comprise approximately 15% of the population, 58% of women in prison are Māori.5 To understand contemporary penal culture and its severity and excess in relation to indigenous women it is necessary to unpack the impact of colonial patriarchy. In doing so we can develop an understanding of how, at a micro level, specific legislation and policy changes have had a drastic impact on the imprisonment of Māori women, but also within a broader context, an understanding of the strategies and techniques of colonial patriarchy assists in clarifying why Māori women in particular appear to become the targets of penal excess. By exploring this phenomenon through the lens of patriarchy and colonialism it is possible to consider a perspective on the sentencing of Māori women that is consistent with a more holistic and healing approach to restorative justice. Prior to European contact and colonisation, traditional Māori beliefs assigned women a status and position that utilised human resources efficiently and was socially sophisticated with respect to equality.6 Māori women were key figures in nurturing and organising the whānau and hapū,7 and played leading roles in their communities.8 They were

3  E Baldry and C Cunneen, ‘Imprisoned Indigenous Women and the Shadow of Colonial Patriarchy’ (2014) 47 Australian & New Zealand Journal of Criminology 276, 276. 4 G Burt, ‘What about the Wahine? Can an Alternative Sentencing Practice Reduce the Rate that Maori Women Fill Our Prisons? An Argument for the Implementation of Indigenous Sentencing Courts in New Z ­ ealand’ (2011) 19 Waikato Law Review: Taumauri 206, 208; Department of Corrections (NZ), Over-representation of Māori in the Criminal Justice System: An Exploratory Report (September 2007). 5  Statistics New Zealand, ‘New Zealand’s Prison Population’, www.stats.govt.nz/browse_for_stats/snapshots-ofnz/yearbook/society/crime/corrections.aspx. 6  Burt, ‘What about the Wahine?’ (n 4) 208. 7  New Zealand Law Commission, Justice: The Experiences of Māori Women (Wellington, NZLC R53, 1999) 12. 8  Burt, ‘What about the Wahine?’ (n 4) 208.

the ­primary transmitters of specialised knowledge from childbirth to weaponry9 with whakapapa (genealogy) providing the lineage for a higher societal ranking, irrespective of gender.10 The imposition of European legislative measures and ideologies following the signing of the Treaty of Waitangi in 1840 systematically eroded the functions and values that Māori women were accustomed to. The patriarchal nature of European culture directly challenged the traditional roles held by women in Māori society. ‘As colonisation attempted to assimilate Māori to European standards, the legitimacy of female influence in Māori society was undermined,’ leaving them vulnerable and with little support, either materially, spiritually, or collectively.11 Ani Mikaere describes how the imposition of colonial rules and colonisation of tikanga Māori, coupled with the increasing modernisation and urbanisation of Māori, and the breakdown of collective social organisation, all contribute to the social and economic disadvantages that are most severely felt by Māori women.12 The effects of colonialism are clearly apparent when reviewing social indicators such as income, health, education and sole charge of dependent children, many of which are indicators of offending.13 A direct connection with the ethnic and gendered identity of Māori women can be made to the high rates of offending and the resultant sentences produced by colonisation-driven poverty. Moreton-Robinson notes that ‘the impoverished conditions under which Indigenous people live are rationalised as a product of dysfunctional cultural traditions and individual bad behaviour and it is Indigenous pathology not the strategies and tactics of patriarchal white sovereignty which is to blame’ for the high rate of offending amongst Māori women.14 Thus, the use of imprisonment has become a normalised response to the position of Māori women in New Zealand society today. This response is imbued with cultural significance demonstrating an unbroken chain of gender discrimination under the influence of colonial patriarchy. The lives of Māori women are framed by the presence of patriarchal white sovereignty. Thus, by aligning patriarchy with colonialism, we discover a more effective means of situating Māori women’s experiences. The debilitating power of patriarchal colonialism offers an understanding of the extreme rates of criminalisation and incarceration of Māori women.

The Relevance of Gender to Sentencing Principles Various explanations describe the phenomenon of the growth in prison populations ­globally. However, women have largely been left out of the discussions on the expansion

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Law Commission, Justice (n 7) 14. Burt, ‘What about the Wahine?’ (n 4) 209. 11 ibid. 12  A Mikaere, Colonising Myths–Māori Realities He Rukuruku Whakaaro (Wellington, Huia Publishers, 2011) 179–204. 13  P Doone, Report on Combating and Preventing Māori Crime (Wellington, Crime Prevention Unit, Department of the Prime Minister, 2000) 11, 21. 14  A Moreton-Robinson, ‘Imagining the Good Indigenous Citizen: Race War and the Pathology of Patriarchal White Sovereignty’ (2009) 15 Cultural Studies Review 61, 68. 10 

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Mana Wahine

of the prison system, despite the fact that they are the fastest growing sector of the prison population.15 This problem is replicated in New Zealand where Māori women, as an ­identifiable group with particularly pressing needs, have remained virtually invisible to the law.16 For example, a review of the Sentencing Act 2002 (NZ) a year after it was first passed failed to discuss Māori or women in relation to sentencing practices and states that the Act had not intended any general change in the use of imprisonment.17 However, ‘the relevance of gender within the criminal justice system … is often unexamined or downplayed in social importance’.18 Of particular relevance is the fact that the Sentencing Act abolished suspended sentences. Prior to the passage of the Sentencing Act, Parliamentary discussions did not consider gender (or race) despite the large number of women receiving suspended sentences based on their suitability for women with dependent children, and women’s lower risk of re-offending­.19 The net effect meant women who may previously have received a suspended sentence were more likely to receive a custodial sentence instead.20 This suggests that women are now treated similarly to men, thus diminishing the significance of their different circumstances. It is not appropriate simply to replicate the provisions for men within the criminal justice system and hope they will work for women, including Māori women. History reveals that unless there is a specific focus on Māori women they will continue to be disadvantaged as a minority within a male-oriented prison system. Māori women offenders differ significantly from male offenders in that they often exhibit more complex needs. Women who enter prison tend to be poor or welfare dependent, have few educational qualifications, have mental health problems, histories of drug and alcohol abuse21 and tend to have experienced high levels of victimisation.22 Approximately 50 to 80% of women in prison are mothers, often sole parents, and are more likely than imprisoned fathers to have lived with their children prior to coming to prison.23 Imprisonment has a devastating effect on the children of women offenders with as few as 5% of children remaining in the family home when their mothers go to prison.24 It is not unusual for siblings to be separated and there is often a lack of stability and continuity in children’s care arrangements early in the mother’s sentence.25 The specific issues involved, and the tendency to marginalise Māori women’s needs, means it makes sense to have a particular focus on the manner in which Māori women are sentenced. 15 

Y Davis, Are Prisons Obsolete? (New York, Seven Stories Press, 2003) 65. Mikaere, ‘Māori Women: Caught in the Contradiction of a Colonised Reality’ (1994) 2 Waikato Law Review: Taumauri 125, 133. 17  R Chhana et al, The Sentencing Act 2002: Monitoring the First Year (Wellington, Ministry of Justice, 2004) 41. 18  J Tolmie, ‘Women and the Criminal Justice System’ in J Tolmie and W Brookbanks (eds), Criminal Justice in New Zealand (Wellington, LexisNexis, 2007) 296. 19 ibid. 20  Burt, ‘What about the Wahine?’ (n 4) 211. 21  D Caddle and D Crisp, Imprisoned Women and Mothers (London, Home Office, 1997) 162. 22  M Chesney-Lind and L Pasko, The Female Offender: Girls, Women and Crime, 2nd edn (California, Sage ­Publications, 2003). 23  B Bloom et al, Gender-Responsive Strategies: Research, Practice and Guiding Principles for Women Offenders (Washington, National Institute of Corrections, 2003). 24  V Kingi et al, Mothers with Babies in Prison: Some Women Prisoners’ Perspectives (Wellington, Department of Corrections, 2008) 4. 25  Chesney-Lind and Pasko, The Female Offender (n 22). 16  A

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In a compassionate world, most of the solutions to Māori women’s offending would be found outside prison walls in treatment for addictions and mental health problems, protection from domestic violence and coercive relationships, secure housing, debt management, education, skills development and employment based on the principles of tikanga. Whānau support would enable Māori women to take control of their lives, care for their children and address the causes of their offending. Parliament first acknowledged Māori over-representation within the New Zealand justice system, with the introduction of s 16 of the Criminal Justice Act 1985 (NZ).26 The Minister of Justice, the Rt Hon Geoffrey Palmer, introduced the second reading of the Bill stating that the purpose of s 16 was to: ‘secure the co-operation of ethnic minorities that at present experience high rates of imprisonment in seeking ways of finding alternatives to imprisonment’.27 Although no mention of over-representation appears in Parliamentary debates before the passage of the Sentencing Act 2002, s 27 of that Act was clearly an expansion of the earlier s 16, allowing a greater opportunity for the courts to pay cognisance to the cultural background of an offender.28 It is unfortunate that these provisions are continually overlooked by the courts, representing lost opportunities to meaningfully address Māori imprisonment rates. This is evidenced, for example, in the High Court and Court of Appeal cases of R v Mika, when Mika’s argument for a 10% sentencing discount to reflect his Māori heritage and associated disadvantages was dismissed.29 The Court at both levels acknowledged s 27, but failed to apply it.30 Research indicates s 27 is used infrequently,31 with one judge describing s 27 as one of the most under-utilised and unknown provisions in the Sentencing Act.32 The author of Hall on Sentencing33 endorses this opinion, describing s 27 as widely unknown, leaving the provision largely redundant.34 More positively, in a step towards finding a solution to these issues, the energy with which the government has begun to address the issue of Māori offenders through the provision of marae-based justice is to be commended. Te Kooti Rangatahi35 is a maraebased youth court that integrates tikanga Māori into the judicial process, with the aim of facilitating the reconnection of young people with their culture and involving the wider

26 

Parliamentary Debates 23 July 1985, 464 NZPD 5834, Rt Hon Geoffrey Palmer.

27 ibid. 28 

See Sentencing Act 2002, ss 8, 25, 26 and 27. R v Mika [2013] NZHC 2357; Mika v R [2013] NZCA 648. 30  R Harland, R v Mika: An Investigation into the Court of Appeal’s Neglect of s 27 of the Sentencing Act 2002 (Wellington, Victoria University of Wellington Legal Research Paper Series, 2014) 18; N Chisnall, The Mitigatory Effect of Social Disadvantage (Wellington, New Zealand Law Society Continuing Legal Education Symposium, 2016) 144–146. 31 ibid. 32  J O’Driscoll, ‘A Powerful Mitigating Tool? The Failure to Use s. 27 of the Sentencing Act (New Zealand)’ [2012] New Zealand Law Journal 358. 33  G Hall (ed), Hall’s Sentencing (Wellington, LexisNexis, 2014) 27.1. 34  See also N Chisnall. The Mitigatory Effect (n 30). 35  Ministry of Justice, Evaluation of the Early Outcomes of Nga Kooti Rangatahi (Wellington, Ministry of Justice, 2012). 29 

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Developing Culturally Sensitive Sentencing Principles

518  Linda Hasan-Stein and Valmaine Toki

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community. This type of marae-based justice provides real opportunities to influence and accelerate the reform agenda for Māori women. Marae-based programmes for pregnant offenders and those with young infants have the ability to improve the self-esteem of the offender by providing a more culturally appropriate means of sentencing that removes some of the barriers experienced by Māori women. This type of programme takes a positive step towards addressing the persistently high rate of imprisonment experienced by Māori women, whilst also encouraging the sharing of responsibility between Māori and the state for those at the margins of society, and furthermore, reducing the number of young Māori separated from their mothers during periods of incarceration. This type of sentencing provision moves away from a regulative approach associated with legislation towards a more value-based approach consistent with tikanga Māori. A marae-based programme in turn upholds the principles of the United Nations ­Declaration on the Rights of Indigenous Peoples (UNDRIP) by taking steps towards answering the Māori voice for self-determination.36 Although not providing the absolute right to tino rangatiratanga (self-determination) that many call for37 (Shashana would still be under the direction of a probation officer and answerable to the state), such an arrangement is a move towards social change that enhances the prospects for marginalised Māori women. If the principles of tikanga were incorporated into Shashana’s rehabilitation, along with other forms of intervention suggested in the rewritten judgment, such as ‘economic development, education and health promotion,’38 research suggests that the disproportionate number of custodial sentences received by Māori women could be reduced.39 The Universal Declaration of Human Rights and the Covenants it gave rise to affirmed human dignity and diversity of human aspiration under equal protection of law.40 UNDRIP itself contains numerous provisions on the right to redress that will become increasingly important as the indigenous rights framework develops.41 UNDRIP offers Māori women the potential to maintain and strengthen their own whānau, iwi and hapu, which in turn protects the integrity of Māori culture for future generations. The state must recognise that increased partnership with Māori women through the incorporation of UNDRIP into New Zealand law will only strengthen and serve democracy, not undermine it. Jackson stated that the justice system needed to ‘address ways in which existing operations could be made more meaningfully bicultural’ and ‘consider in what ways … specifically Māori institutions might be developed to … share the authority defined by the Treaty’.42 In light of Jackson’s comments, it is not unreasonable in a modern landscape that recognises UNDRIP, to have an expectation that state-run institutions should have a strong relationship with tikanga Māori. While the adoption of a culturally appropriate criminal justice

36  United Nations Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) UNGA Res 61/295, art 3. 37  M Jackson, The Māori and the Criminal Justice System: A New Perspective = He Whaipaanga Hou Part 2 (­Wellington, Department of Justice, 1988) 108. 38  E Marchetti and K Daly, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 17 Sydney Law Review 443. 39  Burt, ‘What about the Wahine?’ (n 4) 216. 40  S Elias, ‘Equality Under Law’ (2005) 13 Waikato Law Review: Taumauri 1. 41  UNDRIP (n 36) art 8(2), 11(2), 20(2), 28 and 32(3). 42 Jackson, The Māori and the Criminal Justice System (n 37) 108.

system is advocated by Māori, very little has been done specifically to address sentencing of Māori women whose statistics call out for attention.43 The indigenous judgment in R v Te Tomo is an attempt by Toki J to answer Jackson’s call for institutions that forge stronger relationships with tikanga Māori.

The Mana Wahine Judgment Whatungarongaro te tangata, toitū te whenua As man disappears from sight, the land remains

In an ideal world Shashana would have been sentenced in an indigenous court, a forum that is underpinned by indigenous concepts such as healing and harmony within a whanaungatanga environment. This would allow for greater participation of the indigenous community in her sentencing process. However, it was Toki J’s intention to keep the rewritten judgment as ‘original’ as possible. Judicial officers who sentence criminal offenders, whether in mainstream courts or in indigenous sentencing courts, are both constrained by legislation and jurisprudence developed by the courts.44 Nonetheless, when considering an appropriate penalty, judges have a wide discretion to consider any factors relevant to the offence and the offender. Toki J demonstrates in her judgment that the principles of therapeutic jurisprudence can be incorporated into the decisions of mainstream courts by tailoring the discretion available to the courts to reflect the individual offender’s cultural characteristics. In the original judgment, the judge followed a conventional sentencing template that first narrated his interpretation of the events before considering aggravating and m ­ itigating factors affecting Shashana Te Tomo’s culpability and rationalising the chosen level of punishment. The judge then read a moral lesson within the case from which Shashana Te Tomo might learn, and closed with a commendation of her supportive mother. ‘The function of a sentencing judgment is the construction of narratives justifying the punishment being handed down. Those narratives become the legal truth of the events in question. Alternative versions are disqualified or silenced’.45 In Te Tomo, the narratives presented within the Rotorua High Court were already restricted by the long reaching arm of colonialism. In reimagining this judgment, Toki J corrects the colonially influenced framing of the original case by resituating the events of the crime squarely within a framework that acknowledges mana wahine and the colonial context. In doing so, her restructured narrative challenges the ‘truth’ of the original sentencing decision and fills in the gaps created by that long reaching arm of colonialism. At the same time, Toki J sets out to offer the possibility of cultural rehabilitation in her revisioning of Te Tomo. She has done this by contemplating Shashana Te Tomo’s reality from an indigenous perspective and retelling

43 

Burt, ‘What about the Wahine?’ (n 4) 216. Douglas, ‘Intersectionality and Indigenous Sentencing Courts: R v Morgan’ in H Douglas et al (eds), ­Australian Feminist Judgments: Righting and Rewriting Law (Oxford, Hart Publishing, 2014) 339. 45  K Duncanson, ‘Truth in Sentencing: Narration of Judgment in R v Webster’ in Douglas, Australian Feminist Judgments (n 44) 310. 44  H

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the narratives of the judgment from a view point of one indigenous woman observing another indigenous woman. Her attentive rewriting involving a greater level of cultural awareness and the use of Māori linguistic expression reforms the legal judgment into one that better reflects intrinsic qualities of mana wahine, also paying attention and respect to Papatūānuku, the earth mother, who symbolises balance and beauty. Toki J makes the point that not only was an understanding of the cultural and social context, and the intersecting experiences of gender, culture and poverty, essential, but the absence of a body of research before the Court on cross cultural issues meant that Shashana Te Tomo was misunderstood. In advocating a more consistent reference to personal, family, whānau, community and cultural background evidence, as required by s 8 of the Sentencing Act, she sets the stage for a reconsideration of how we approach sentencing decisions that affect Māori women and their whānau. Toki J employs a specifically holistic mechanism in the judgment through her application of s 25(1)(e) of the Sentencing Act, which allows the courts to explore restorative and therapeutic avenues to achieving justice. A study by the Expert Mechanism on the Rights of Indigenous Peoples found that in order to improve access to justice for indigenous women, their children and families, law reform processes must include holistic and healing-based responses.46 It is with a holistic and healing-based approach that Toki J addresses the factors that contribute to the disproportionately high rate of custodial sentences received by Māori women and considers ways in which reoffending rates could be reduced. While no simple solution exists to the over-representation of Māori in the criminal justice system,47 marae-based approaches consistent with therapeutic jurisprudence have the potential to support positive long-term outcomes for Māori women and their whānau.48 Breaking the cycle of poverty and associated offending in which Māori are often caught requires improved access to, and participation in, a healthy cultural identity, of which the marae forms a central part. Reducing custodial sentences and lower incarceration rates for Māori women will also improve their ability to care for the next generation.49

Conclusion Me aro koe ki te hā o Hine-ahu-one Pay heed to the dignity of women

Aroha Mead described Māori women as the backbone of Māori society, and not only because of their ability to bear children.50 Thus, to imprison Māori women in the current

46  Human Rights Council, Study by the Expert Mechanism on the Rights of Indigenous Peoples (Geneva, United Nations General Assembly, 2014) [46]. 47  B Morris, Identifying and Responding to Bias in the Criminal Justice System (Wellington, Ministry of Justice, 2009) 18. 48 www.justice.govt.nz/about/news-and-media/news/rangatahi-court-award-judicial-excellence/. 49  Burt, ‘What about the Wahine?’ (n 4) 216. 50  A Mead, Māori Leadership (Palmerston North, Hui Whakapumau: Māori Development Conference, 1994) 3.

environment strikes at the core of Māori society, annihilating their potential commitment to whānau. The challenge for New Zealand as a society is to find a more effective response to the large and complex issues that threaten the wellbeing of mana wahine. This means having the courage to allow Māori women to rediscover and reassert tikanga Māori within their own whānau. The challenge is adopting an understanding of where Māori women stand in accordance with the Māori world view; a standpoint that has no affinity with the common law tradition which has been imposed upon them, but instead derives from a tradition of tikanga that as New Zealanders we have every reason to uphold and respect.

Mana Wahine

R v Shashana Lee Te Tomo—Commentary 521

Mana Wahine

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2009-063-6473 [2012] NZHC 71

THE QUEEN v SHASHANA LEE TE TOMO

Appearances: L Smith for the Crown A Waatea for the Prisoner Judgment: 2 February 2012 SENTENCING NOTES OF TOKI J Facts [1] Ms Te Tomo, between 4 October and 30 October 2009 you assisted Mr Duff, who was at that stage your partner, to evade authorities. Mr Duff, a member of the Mongrel Mob, was wanted in connection with a homicide involving the beating to death of a young man in the street in Murupara on the night of 3 October 2009. Cellphone data indicates that you provided Mr Duff with accommodation, money and clothing, and encouraged him to avoid arrest. [2] At this time you were not to know that Mr Duff would subsequently be acquitted of murder and manslaughter. Your culpability lies in assisting Mr Duff evade police in relation to a homicide charge. [3] Ms Te Tomo, you pleaded guilty to one charge under s 71 of the Crimes Act 1961, being an accessory after the fact, and one charge under s 98A, of participating in an organised criminal group. However, with

Mr Duff’s acquittal of murder at a trial in this Court last year, the indictment against you has been amended. As a result, you have pleaded guilty to one of the two alternative charges proffered, participating in an organised criminal group. This carries a maximum of five years’ imprisonment. [4] As I read the facts they reveal that, like so many other Māori women in similar circumstances, you have been in a situation involving a high degree of stress. This relates to the recent loss of a child, coping with two children under three and now being pregnant with a fourth child. In addition, you have been in a relationship with a man who was charged with murder and is now acquitted. During this difficult time, you chose a course of action in assisting Mr Duff and as a result you now face sentencing. Sentencing Act 2002 [5] Sections 7 and 8 of the Sentencing Act 2002 set out the purposes and guiding principles to be taken into account by a sentencing judge in deciding the appropriate sentence. These include accountability, deterrence, rehabilitation and the gravity of the offence. [6] Ms Te Tomo, you are a young Māori woman and I am mindful of s 8(i) of the Act that directs a sentencing judge to take into account an offender’s background: [the Court] must take into account the offender’s personal, family, whānau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose;

[7] I acknowledge your family here today, including your mother, and therefore refer to s 27 for further assistance: Offender may request court to hear person on personal, family, whānau, community, and cultural background of offender (1) If an offender appears before a court for sentencing, the o­ ffender may request the court to hear any person or persons called by the ­offender to speak on— (a) the personal, family, whānau, community, and cultural background of the offender: (b) the way in which that background may have related to the commission of the offence:

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(c) any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whānau, or community and the victim or victims of the offence: (d) how support from the family, whānau, or community may be available to help prevent further offending by the offender: (e) how the offender’s background, or family, whānau, or ­community support may be relevant in respect of possible sentences.

I note that both the pre-sentencing and the reparation report fail to adequately address the matters raised in these sections. In particular, the information relating to whānau and cultural background of the offender was not provided.1 Therefore I must consider these provisions and relevant material afresh. [8] While it is not explicit that these sections of the Act are intended to apply when the defendant is Māori, it is implicit given the nature of the language with terms such as “whānau” and “cultural background”. [9] I note that this lack of consideration of ss 8(i) and 27 of the Act occurs all too commonly in cases coming before me. This omission, in your case, does not remove my obligation to consider these sections, nor indeed does it allow me to misconstrue the intention of Parliament when legislating these sections.2 [10] When determining a starting point or benchmark for a Māori offender, reference to previous sentencing decisions, when these provisions have not been taken into account, would be ill-considered. [11] In considering the application of these sections I am particularly mindful that women comprise approximately 6 per cent of the total prison

1 Section 26(2)(a). 2 See Police v Wells [1987] 2 NZLR 560 where Smellie J noted the “erroneous interpretation” by the judge in the lower court of s 16 of the Criminal Justice Act 1985 (“Offender may call witness as to cultural and family background” now repealed) and that the remarks were “insensitive, disparaging and irrelevant.”

population and Māori women constitute 56 per cent of that female prisoner ­population.3 This disproportionately high incarceration rate of Indigenous women is a ­statistic shared by many Indigenous women in countries such as Canada and Australia. I note that the Special Rapporteur on the Rights of Indigenous ­Peoples has drawn international attention to Māori over-representation in New Zealand prisons.4 [12] The intention of Parliament when enacting s 16 of the Criminal Justice Act 1985, the forerunner to s 27, was to engage with communities in order to reduce imprisonment rates and encourage community-based sentences. ­Subsequently this provided the opportunity to involve communities, ­including the Māori communities, to find alternatives to imprisonment for their ­community members. Sections 27 and 8(i) of the Sentencing Act build on this i­ ntention and allow the court to gather all appropriate information and focus this ability with the inclusion of the word “whānau”. [13] I am reminded that in similar jurisdictions such as Canada, counsel are required to provide a sentencing report, also known as a Gladue report, where like a pre-sentence report cultural factors are required to be addressed. [14] Produced in accordance with s 718.2(e) of the Canadian Criminal Code, Gladue reports are compiled by defence counsel for the court, to provide information for sentencing purposes. Such reports are indeed helpful and assist the court to explore alternatives to imprisonment with special attention to the c­ ircumstances of aboriginal offenders. [15] In R v Gladue,5 the Supreme Court of Canada stated: It [s. 718.2(e) of the Criminal Code] is remedial in nature and is designed to ameliorate the serious problem of over representation of aboriginal ­people in

3

4 5

See Department of Corrections Over-representation of Māori in the criminal ­justice system—An ­exploratory report (Policy, Strategy and Research Group, ­Wellington, ­September 2007) at 6. However, in 2009, 56 per cent of inmates identified as Māori and women. See Statistics New Zealand New Zealand Yearbook (Statistics New Zealand, Wellington, 2010) at 207. Report of the Special Rapporteur on the situation of human rights and ­fundamental freedoms of indigenous people, Mission to New Zealand, Rodolfo Stavenhagen. E/CN.4/2006/78/Add.3 13 March 2006 at [57]. [1999] 1 SCR 688 Lamer CJ and L’Heureux-Dubé, Gonthier, Cory, Iacobucci, ­Bastarache and Binnie JJ.

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prisons, and to encourage sentencing judges to have recourse to a ­restorative approach to sentencing.

[16] In light of the alarming over-representation of incarcerated Indigenous women it is informative that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) seeks to redress this situation. The UNDRIP provides a persuasive influence on the understanding of ss 27 and 8(i). [17] The right of Indigenous peoples to participate in decisions that would affect their rights is provided for in Article 18 of the UNDRIP. This article states that Indigenous peoples have the right to participate “through representatives chosen by them, in accordance with their own procedures, as well as to maintain and develop their own indigenous decision making institutions”. A sentencing decision is one that would affect a person’s rights. Accordingly, when Māori are sentenced it would follow that tikanga Māori (Māori customs) should apply as part of the procedural and indigenous decisionmaking provision. [18] The corresponding state obligation to cooperate in good faith with Indigenous peoples before adopting and implementing legislative or administrative measures that may affect them is outlined in Article 19 of the UNDRIP. This includes sentencing decisions under the Sentencing Act 2002. [19] These rights for Indigenous peoples are compounded with the right of self-determination in Article 3 which provides that “Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. [20] The orthodox legal view is that as a “declaration” the UNDRIP is not ­binding. Nonetheless, in leading cases involving Māori, reference to the UNDRIP has been pivotal.6 The UNDRIP has also been referred to in comparative ­jurisdictions as holding a persuasive value.7

6 7

Takamore v Clarke [2012] NZSC 116 at [12] and [35]. Cal & Ors v the Attorney General of Belize & Anor (2007) Claim Nos 171 and 172 of 2007, Conteh CJ (Belize Sup Ct) at [132].

[21] The right of self-determination and the right to participate in d­ ecisions that would affect your rights, are fundamental rights and the UNDRIP ­provides helpful guidance. What is “cultural background” in this instance? [22] Ms Te Tomo, you have, until now, a clean criminal record. This is your first criminal charge. At the time of the offence you were only 21 years of age. You agree that your offending was a one-off matter. The risk of your re-offending­is assessed to be low, unsurprisingly so because you have never appeared in front of a judge before. [23] You are a young Māori female of Tūhoe descent. [24] Through a tikanga Māori or Māori cultural lens the charge of assisting your partner, Mr Duff, is not considered a “crime”; rather the assistance could be viewed as consistent with the concept of whanaungatanga and ­manaakitanga or relatedness. The survival of your whānau was dependent on everyone, including yourself, as you are part of the collective. This assistance was required to maintain balance within your whānau. [25] Through a modern or contemporary lens, culturally your position in society has been relegated to one that is lower than your male counterpart. Your reliance on the social welfare system for financial assistance has created a degree of dependence on that institution. Together these factors have indirectly contributed to your position today where you found yourself compelled to harbour your partner to secure a whānau or collective that you perceived as imperative for your cultural survival. Your apparent position as subordinate to your male counterpart reinforces this action. [26] It is unfortunate but whānau solidarity, although commendable, cannot justify helping criminals evade the police and the law. [27] Your offending involves harbouring or shielding an offender on the run and not disclosing his whereabouts to the police. This must be met with a ­sentence that contains a degree of deterrence. What is Ms Te Tomo’s personal, family and community background? [28] Ms Te Tomo, you are the mother of two young children aged four years and 11 months. I note that Mr Duff is not the father of either of those two

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children. You are also, as we speak, approximately seven months’ pregnant. The pre-sentence report refers to you having lost an infant child some three years ago. You were 21 at the date of this offending. This set of social ­circumstances, in and of itself, is stressful and burdensome for someone of young years. [29] However, you have a number of supportive friends and whānau ­members evidenced by your mother who is in Court today. [30] I note that your offending involving Mr Duff had a gang element to it, he being a member of the Mongrel Mob. I note you say you are not affiliated to any gang. However, you have a brother and an ex-partner who are said to be patched-members. You told the probation officer that you could see that life would be much better for you outside the gang culture. Sentencing [31] I find myself in the unenviable position of a Māori woman sentencing another Māori woman against a statistical context where a disproportionate number of female inmates identify as Māori. [32] Similar cases have commenced with a starting point of 12 to 18 months’ imprisonment. I refer to R v Duff    8 and R v Everitt.9 Against this starting point, certain mitigating10 and extenuating factors such as your young age and your actions to persuade Mr Duff to surrender, would be taken into account. [33] These factors would reduce the starting point and your parole eligibility would be considered. [34] However, I am mindful of the disproportionate incarceration statistics for Māori women and seek to provide a sentence that is more consistent with ­Parliament’s intention in ss 27 and 8(i) to meaningfully consider cultural ­factors of the offender when sentencing.

8 9 10

R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010. R v Everitt HC Whangarei CRI-2006-088-3601, 28 February 2007. Sentencing Act 2002, s 24(3).

[35] Fifty six per cent of women incarcerated identify as Māori and this is unacceptable. In addition, Māori child poverty rates and levels of Māori child abuse in New Zealand remain amongst the highest in the OECD.11 A sentence of imprisonment would serve to exacerbate these negative effects on your children. [36] Collectively these facts are tragic, negatively impacting on the ability of Māori women to manaaki (look after) their whānau (family) and ­tamariki (children). This calls for a need to enhance mana wahine and a return to tikanga Māori and an environment where culture is embraced and supported, as f­ oreshadowed in the UNDRIP. [37] Despite the recent initiatives within the criminal justice system, these ­statistics remain unchanged. However, I do note the recent success of Ngā Kooti Rangatahi12 and, although only a pilot, the Alcohol and Other Drug Treatment Court is anticipated to reflect the success of similar courts in comparative jurisdictions.13 [38] In sentencing, I am mindful of the fundamental rights provided for in the UNDRIP that are required to be considered and applied. I am also mindful that law as a social force produces behaviours and consequences and also impacts on emotional life and psychological well-being.14 This encourages us to consider whether the law can be applied in a more therapeutic way as long as other v­ alues, such as justice, can be fully respected.15 [39] After taking into account your personal, family, whānau, community, and cultural background, in accordance with s 25(1)(e) of the Sentencing Act 2002, I adjourn these proceedings to enable you to undergo a community service programme to be administered by your local marae, where I understand Te Kooti Rangatahi programmes are also held.

11

See Organisation for Economic Co-operation and Development Family Database 2013. 12 See the Ministry of Justice Evaluation of the early outcomes of Ngā Kooti ­Rangatahi (2012). 13 See Evaluation of Pilot Drug and Alcohol Court (Nuffield Foundation, London, 2012). 14 B Winick and B Wexler Judging in a Therapeutic Key (Carolina Academic Press, North Carolina, 2003). 15 At 15.

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[40] This community programme is one underscored with reciprocity. By t­aking responsibility for your actions you are to undertake work on the marae such as gardening and cleaning. The marae will in turn provide you with programmes such as puna reo for your children and access support to social services including housing, employment services and the Māori Women’s Welfare League. This programme will not remove you from your children and in fact I encourage you to immerse yourself and your children in the marae environment. I am aware of your sense that a better life can be achieved outside the gang situation and this is despite the association with some of your family members. This community programme will provide a way to achieve this. [41] I direct your probation officer to assist in this respect. I expect during this 18-month period all social services will be available to you to support your rehabilitation. I expect the community work undertaken on the marae will provide the necessary support and incentive to not reoffend. [42] After you have completed the first three months, I order you to report back to me on your progress with your children and social conditions. If you are found not to be contributing to the programme to the satisfaction of the marae, then I will revisit your sentence with the possibility of imposing a custodial sentence. [43] Stand down. …………………….. Toki J

28 Commentary on R v Taueki Sentencing Guidelines for Domestic Violence: The Missing Factors YVETTE TINSLEY

The Court of Appeal’s judgment R v Taueki is one of the most comprehensive ‘guideline judgments’ issued by the Court of Appeal.1 Such judgments assist judges in the exercise of their sentencing discretion, and are viewed as desirable constraints put in place to achieve proportionality and consistency in sentencing.2 In a guideline judgment, the Court of Appeal analyses sentencing levels for a particular type of offence across a range of cases. The Court in Taueki dealt with three appeals from custodial sentences ranging from six to ten years, and in doing so provided detailed guidance as to sentencing levels for all offences of serious violence. Rather than setting out what final sentences should be, guideline judgments are meant to assist judges in reaching a starting point for sentences. Determining the ‘starting point’ is the first step in a four step process in deciding the final sentence, and it includes an assessment of any aggravating and mitigating factors relating to the offence.3 The Court in Taueki focused on the circumstances of the offence in setting three overlapping bands of custodial sentence for cases of serious violence. These bands may be increased or decreased according to the aggravating and mitigating factors personal to the offender. As well as offering guidance to the courts, guideline judgments are supposed to have a deterrent function by letting people know what sentence is considered ‘appropriate for the particular offending … for an adult offender after a defended trial’.4 For this reason, 1 

R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372. Guideline judgments have been issued by the Court of Appeal for other major areas of imprisonable offending, including for sexual offences (R v AM [2010] NZCA 114, [2010] 2 NZLR 750) and drug offences (R v Terewi [1999] NZCA 92, [1999] 3 NZLR 62). See also L Campbell, ‘Commentary on DPP v Tiernan’ and L Kennefick and C Fennell, ‘DPP v Tiernan’ in M Enright, J McCandless and A O’Donoghue (eds), Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (Oxford, Hart Publishing, 2017) 479 and 486. 3  After determination of the starting point, the sentencing judge must consider the extent to which the offence requires a sentence that varies from it. This variation could be applied because of aggravating or mitigating factors personal to the offender, a guilty plea discount, and any other special circumstances that justify a departure from the tariff sentence. 4  R v Mako [2000] NZCA 407, [2000] 2 NZLR 170 [34]. 2 

532  Yvette Tinsley although the sentencing bands and starting points in guideline judgments are to be used flexibly and adjusted to reflect any unusual features in a case,5 reasons must be given if the guideline is departed from. In all cases, the sentencing judge should set out the basis for determining the band and the factors that guided the assessment of the starting point.6 The Taueki decision was issued against a background of rising rates of imprisonment7 and public concern about violent crime, especially home invasion and similar offences.8 New Zealand’s already high per capita prison population rose from 145 per 100,000 population in 2003 to 179 per 100,000 in 2005.9 Harsher sentencing practices were applied, particularly for violent and sexual offenders. There was a prevailing mood of punitiveness,10 even though the previous decade had seen a decrease in crime overall and only a small increase in violent offending.11 For the first time, the Sentencing Act 2002 (NZ) (the Act) set out in one place the main purposes and principles of sentencing, and the aggravating and mitigating factors that should be taken into account. These are primarily set out in ss 7, 8 and 9 of the Act, which are broadly designed to ensure that the sentence is proportionate to the seriousness of the offence and the culpability of the offender. However, the Act lacked (and still lacks) any prioritisation of the various purposes of sentencing set out in s 7. This means that sentencing judges have discretion to choose the purpose that they believe is most appropriate in the particular case. In addition, the principles in s 8 and the aggravating and mitigating factors in s 9 give guidance as to how a sentence for one offence should relate to another, but they provide no guidance as to the actual quantum. As a result, the Act did not eliminate or reduce the need for guideline judgments, as judges retained extensive discretion in sentencing in individual cases.12 The principles in s 8(c) and (d) of the Act require judges to ‘impose the maximum penalty prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed’ and to impose near to the maximum penalty for offences close to the most serious of such cases. At the same time, judges are mandated to impose the least restrictive outcome that is appropriate in the circumstances (s 8(g)), which means that non-custodial options should be considered wherever appropriate.13

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Taueki (n 1) [42]. Taueki (n 1) [43]. 7  www.prisonstudies.org/country/new-zealand. See also J Pratt, A Punitive Society: Falling Crime and Rising Imprisonment in New Zealand (Wellington, Bridget Williams Books, 2013), for a full discussion of rising imprisonment in New Zealand through the 2000s. Graphs of prison and crime rates 1980–2012 are included in the book at 1–2. 8  eg, the Crimes (Home Invasion) Amendment Act 1999 (NZ) was passed as a response to perceived fears about crime committed inside a victim’s home. Although repealed, ‘home invasion’ was incorporated as an aggravating factor in s 9 of the Sentencing Act 2002. 9  Figures generated from data found in Statistics New Zealand, Yearbook Collection: 1893–2012, www.stats.govt. nz/browse_for_stats/snapshots-of-nz/digital-yearbook-collection.aspx and Department of Corrections, Prison Statistics, www.corrections.govt.nz/resources/research_and_statistics/quarterly_prison_statistics.html. 10  For a discussion of populist punitiveness see AE Bottoms, ‘The Philosophy and Politics of Punishment and Sentencing’ in C Clarkson and R Morgan (eds), The Politics of Sentencing Reform (Oxford, Clarendon Press, 1995) 15; and J Pratt and M Clark, ‘Penal Populism in New Zealand’ (2003) 7 Punishment and Society 303. 11  Statistics New Zealand, Crime in New Zealand 1996–2005 (Wellington, Statistics New Zealand, 2006). 12  As a result of this discretion, there may be significant variation in sentencing practice: see W Goodall and R Durrant, ‘Regional Variation in Sentencing: The Incarceration of Aggravated Drink Drivers in the New Zealand District Courts’ (2013) 46 Australian & New Zealand Journal of Criminology 422. 13  Section 10A sets out a hierarchy of sentences from the least restrictive to most restrictive: starting from discharge or order to come up for sentence if called on, through various community penalties, to home detention and imprisonment. 6 

R v Taueki—Commentary 533 R v Hereora,14 the guideline judgment in place before Taueki, had a top band two years below the maximum penalty for the most serious of the non-fatal offences against the person, making the application of s 8(c) and (d) difficult. The Court in Taueki set out to take into account the changes in sentencing law and practice since the decision in Hereora,15 expanding the bands for sentence starting points to increase sentences at the top end in order to accommodate s 8(c) and (d). The Act provides that courts ‘must take into account the general desirability of consistency’,16 but the judgment describes consistency as the ‘principal objective’ of the guidelines.17 This emphasises how important it was to the Court in Taueki that judges state how they arrive at the starting point for a sentence, because the starting point is the main way that consistency is assessed. Since Taueki, the Supreme Court has held (in the context of a guideline judgment on guilty pleas) that consistency is to be given no more weight than any other principle in s 8,18 although it has been decided that this does not affect any guideline judgments currently in force.19 At the time of Taueki there was also a growing awareness, both in scholarly circles and in society more generally, of the dynamics and effects of domestic violence. A shift had progressively occurred from the 1980s, when domestic and family violence began to be recognised as social concerns rather than private matters. Police had been operating a proarrest policy for domestic assaults for almost 20 years.20 Although it is debatable whether the policy effected significant change in the rate of arrests or exercise of discretion, it does appear to have educated police officers and raised consciousness about the dynamics of domestic and family violence.21 The Domestic Violence Act 1995 (NZ) expanded the legal definition of domestic violence to include psychological abuse and intimidation and threats, put the pro-arrest policy into law, and provided for ‘without notice’ applications for protection orders.22 Community groups such as Women’s Refuge had successfully argued for policy reform and community education programmes,23 and the first Family Violence Courts were operating in Manukau and Waitakere, utilising a holistic problem-solving approach to family violence.24 In 2001, the New Zealand Law Commission published a report dealing with defences for ‘battered defendants’ which underlined the high prevalence of domestic violence in New Zealand, challenged the term ‘battered woman syndrome’ and acknowledged the role of power and control in violent relationships.25 The different dynamics involved in 14 

R v Hereora [1986] 2 NZLR 164 (CA). ibid [12]. Sentencing Act 2002, s 8(e). 17  Taueki (n 1) [10]. 18  Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607. 19  R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23. 20  For a history of the development of the pro-arrest policy in New Zealand, see S Carswell, Family Violence and the Pro-Arrest Policy: A Literature Review (Wellington, Ministry of Justice, 2006) ch 2; and G Newbold and J Cross, ‘Domestic Violence and Pro-Arrest Policy’ (2008) 33 Social Policy Journal of New Zealand Te Puna Whakaaro 1, 5. 21  Newbold and Cross, ‘Domestic Violence and Pro-Arrest Policy’(n 20) 12. 22  Domestic Violence Act 1995 (NZ), s 13. 23  Ministry of Justice, ‘The Effects and Extent of Violence’ in Ministry of Justice, Safer Communities: Action Plan to Reduce Community Violence and Sexual Violence (Wellington, Ministry of Justice, 2004) 22; New Zealand Parliamentarians’ Group, Creating a Culture of Non-Violence (Wellington, NZPPD, 2005). 24  See T Knaggs, F Leahy and N Soboleva, The Manukau Family Violence Court: An Evaluation of the Family Violence Court Process (Wellington, Ministry of Justice, 2008) for a useful outline of the operation of the Manukau Family Violence Court. 25  New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants (Wellington, NZLC R73, 2001). 15  16 

534  Yvette Tinsley domestic and family violence when compared with other forms of violent offending were well documented. Despite this, the Court issued a guideline judgment which covered all forms of serious violent offending, tailored in the main to the punitive mood of the country, and with no particular guidance or emphasis on different culpability factors for domestic or family violence offences. Even though there has been significant reform in civil and criminal law and policy, domestic violence continues to represent a large percentage of offending today.26 Its impact on society is reflected in the ongoing cross-government Ministerial work programme on family violence and sexual violence, which resulted in a government Bill in 2017 to amend existing family violence laws.27 The guideline judgment in Taueki remains unchanged.

The Feminist Judgment In the feminist judgment, Gourlay J sets out the extent of the problem of domestic violence in New Zealand at the time Taueki was decided. These concerns in and of themselves would not allow consideration of a guideline to deal with domestic and family violence offending: a drawback of guideline judgments is that they are only issued when an appropriate case is before the court. They cannot take into account all of the surrounding societal, cost and system considerations. In Taueki itself, three appeals were heard together in order to review the Hereora guideline judgment, and as with all guideline judgments, the advice issued has application to future cases, rather than to the cases on appeal. However, the facts of Taueki’s appeal provide an appropriate vehicle for the approach taken in the feminist judgment. Taueki had entered his ex-partner’s house uninvited, and had taken a vacuum cleaner hose she had picked up for protection, beating her with it and with his hands. His victim suffered serious physical and psychological injury as a result of the assault.28 Gourlay J seeks to move beyond the majority’s simple assertion that assault in a domestic context should not be treated less seriously than other forms of assault, and instead provides specific guidance for sentencing in domestic violence cases such as Taueki’s. The feminist judgment does not disagree with the majority’s general guideline in Taueki, but instead challenges the issuing of a ‘global’ guideline for all forms of serious violent offending. The essence of Gourlay J’s judgment is that ‘it is inappropriate to group domestic violence with other types of violence’.29 In the original judgment, any unique issues arising in relation to particular types of violence, and the question of how to weigh culpability issues common to particular types of offending, were left largely to judges in

26  The New Zealand Crime and Safety Survey 2013 suggests that over half of interpersonal violent offences were committed by a partner or other family member: Cabinet Paper, ‘Reform of Family Violence Law Paper Three: Prosecuting Family Violence’ (Wellington, Ministry of Justice, August 2016) [6] www.justice.govt.nz/assets/ Documents/Publications/fv-reform-paper-3-prosecuting-family-violence4.pdf. 27  Family and Whānau Violence Legislation Bill (2017) 247-1. For details of the current work programme and related publications, see www.justice.govt.nz/justice-sector-policy/key-initiatives/reducing-family-and-sexualviolence/. 28  Taueki (n 1) [64], [67]. 29  Gourlay J, this collection [138].

R v Taueki—Commentary 535 individual cases. Gourlay J uses the flexibility introduced by the Act to assess the aggravating and mitigating factors in s 9 that are particularly relevant in domestic violence cases, and expand on the majority’s approach. As guideline judgments are influential in all cases of the relevant type, how the Court of Appeal approaches and articulates its guidance is important. For this reason, a feminist approach to a guideline judgment on violence would have the potential to effect real change in the way all courts sentence violent offenders. However, the crafting of a separate judgment is a challenging exercise. This is because a decision considered and issued jointly from a full bench represents the essence of authoritative guidance that judges have confidence in applying. Any separate judgment that adds to the general guideline therefore needs to take care to avoid unnecessary contradiction that would undermine the clarity and authority of the Court of Appeal’s advice to sentencing judges in cases of serious violence in general, and family violence cases in particular. Furthermore, the feminist judgment does not purport to give judges specific guidance in all domestic or family violence cases. Instead, it sets out to provide assistance to judges in sentencing violent offending in the context of an intimate relationship where a male is the abuser. Within this type of case, Gourlay J limits the guideline further. In particular, she rules out of scope of her judgment ‘cultural or other factors at play that must also be considered’ despite highlighting the disproportionate numbers of Māori women who ‘suffer domestic violence’,30 and despite the growing understanding of the needs of Māori victims and offenders at the time Taueki was decided.31 There is a danger that in correcting breadth, the judgment could end up being too narrow, and could necessitate too many specific directions for different manifestations of domestic and other violence. Given the need for clear, concise and authoritative guidance for sentencing judges, a proliferation of guideline judgments across violent offending runs the risk of diluting the impact of appellate advice. It also means that issues such as excessive self-defence by survivors of abusive relationships,32 and violence against children, are left for another day. However, these challenges of proliferation, confusion and contradiction are outweighed by the potential benefits of the judgment, which represents the first attempt at carefully worded separate guidance that recognises the societal impact and ongoing nature of family violence. Such advice could equip courts to respond appropriately to past, ongoing and future harms associated with family and domestic violence. After outlining why a specific guideline is required, the feminist judgment goes on to discuss the relevant sentencing factors, and three of these warrant particular comment: the factor of power and control (which is not found in the Act), premeditation, and conduct of the victim. Gourlay J emphasises that one of the aspects in many domestic violence cases that needs to be specifically dealt with in sentencing is the effect of controlling behaviour and patterns of abuse. By 2005, when Taueki was reported, feminist understandings derived

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ibid [142]. eg, T Kruger et al, Transforming Whānau Violence: A Conceptual Framework, 2nd edn (Wellington, Te Puni Kokiri, 2004). There was more limited, but developing, understanding of the needs and experiences of Pasifika peoples: SJ Wurtzburg, ‘The Pacific Island Community in New Zealand: Domestic Violence and Access to Justice’ (2003) 14 Criminal Justice Policy Review 423. 32 For a recent discussion of self-defence and its parameters in the context of violent relationships, see New Zealand Law Commission, Understanding Family Violence: Reforming the Criminal Law Relating to Homicide (Wellington, NZLC R139, 2016). 31  See,

536  Yvette Tinsley from both research and the lived experiences of women who had been in abusive relationships had expanded the notion of domestic violence beyond incidents of physical assault.33 Feminist scholarship from the early 1990s onwards highlighted the interrelated abusive, coercive and controlling behaviours that caused harm.34 This work illustrated the role of patriarchal attitudes and gendered power differences in fostering inequality and in the use of violent behaviour to achieve and maintain power and control.35 Ethnographic and sociopolitical studies highlighted the role of structural inequalities and masculine identity crises when faced with loss of power (through unemployment, for example).36 Since Taueki was decided, the importance of power and control has been more widely recognised. A violence model focused on incidents of physical assault cannot fully address the harms caused, nor the risk of recidivism in that relationship or future relationships. As Stark outlines, some of the behaviours involved in what he terms ‘coercive control’ are not illegal, even though they may have a significant impact on every aspect of a woman’s daily life, from the access they have to money through to how they dress.37 Coercive control therefore undermines autonomy and social supports, and as Gourlay J suggests, where there is an ongoing pattern of abuse, the harm resulting from a physical assault is not the full extent of the harms caused leading up to or accompanying the assault. The Act does not offer any nuanced guidance on how sentences should respond to the underlying non-criminal harms of family violence. This should not necessarily prevent the recognition of coercive control and a pattern of abuse being accommodated as an aggravating factor under the legislation now, or as it was in 2005 when the Court issued the decision in Taueki. Whilst understanding about the dynamics of domestic and family violence has increased in the 12 years since, evidence and scholarship available to the Court in 2005 would have allowed an approach like Gourlay J’s to be developed. Section 9 of the Act is not exhaustive, meaning that judges can consider other aggravating factors. The factors listed in the section already acknowledge the role of abuse of trust (s 9(1)(f)), if the victim was particularly vulnerable because of any ‘factor known to the offender’ (s 9(1)(g)), and if there were previous convictions for similar behaviour, perhaps against the same victim as in the instant case (s 9(1)(j)). These inquiries do not specifically deal with a pattern of abuse or

33  C Muehlenhard and L Kimes, ‘The Social Construction of Violence: The Case of Sexual And Domestic Violence’ (1999) 3 Personality and Social Psychology Review 234; MA Dutton, ‘Understanding Women’s Response to Domestic Violence’ (1993) 21 Hofstra Law Review 1191. See also the impact of the Domestic Abuse Intervention Project power and control ‘wheel’, which was developed from focus groups with women about their experiences in violent relationships: www.theduluthmodel.org/wp-content/uploads/2017/03/Powerand Control.pdf; E Pence and M Paymar, Power and Control: Tactics of Men Who Batter (Duluth, Minnesota Program Development Inc.,1986). 34  See, eg, D Tuerkheimer, ‘Recognizing and Remedying the Harm of Battering’ (2004) 94 Journal of Criminal Law and Criminology 959; R Busch and N Robertson, ‘“What’s Love Got To Do With It?”: An Analysis of an Intervention Approach to Domestic Violence’ (1993) 1 Waikato Law Review 109, 116; and N Seuffert, ‘Lawyering for Women Survivors of Domestic Violence’ (1996) 4 Waikato Law Review: Taumauri 1, 9. 35  A Cunningham et al, ‘Theory Derived Explanations of Male Violence Against Female Partners: Literature Update and Related Implications for Treatment and Evaluation’ (Ontario, London Family Court Clinic, 1998) www.lfcc.on.ca/maleviolence.pdf. 36  R Jewkes, ‘Intimate Partner Violence: Causes and Prevention’ (2002) 359 The Lancet 1423. 37  E Stark, Coercive Control: How Men Entrap Women in Personal Life (New York, Oxford University Press, 2007) 5, 15, 156, 173, 274; E Stark, ‘Re-presenting Battered Women: Coercive Control and the Defense of Liberty’ (2012) www.stopvaw.org/uploads/evan_stark_article_final_100812.pdf.

R v Taueki—Commentary 537 coercive control, but they may be useful tools for judges to reflect the culpability and harm caused by the totality of the offender’s behaviour. As part of her separate guideline, Gourlay J challenges the traditional approach to sentencing when she discusses the aggravating factor of premeditation under s 9(1)(i). She argues that, where the case involves an abusive relationship, using the ‘classic sense’ of premeditation as planning or foresight about the attack is problematic. As she points out, the majority decision in Taueki emphasised the classic approach to premeditation in each of the sentencing bands it outlined. Gourlay J argues that in a domestic violence context there may not be planning in the classic sense, but the violence cannot be viewed as random or entirely unpremeditated when it is part of an ongoing pattern of abuse. This logical approach may run counter to societal and judicial assumptions about the rationality and culpability of those who offend against their partners versus those who offend against strangers. Expressive offending, that is crimes of passion, anger or loss of self-control, tends to be viewed as less reprehensible than instrumental violence committed through rational planning or calculation.38 Domestic violence is often viewed as an expressive offence, but as is argued in the feminist judgment, the classic approach to premeditation ignores the ongoing power and control features of domestic abuse, which could be characterised as being instrumental, committed in order to gain coercive control within the relationship. Gourlay J also emphasises the need to take care when assessing whether the conduct of the victim should be a mitigating factor under s 9. She argues that violence in response to infidelity or other actions by the victim would often not be an out-of-character or random response when viewed against the background of an abusive relationship. Certainly, the character theory of provocation would support Gourlay J’s argument. Under that theory the moral blameworthiness of the offender is reduced when the actions were an uncharacteristic response and are unlikely to be repeated.39 Where there is a pattern of abuse and violence, a violent assault cannot be said to be atypical. Gourlay J highlights the limitations of the majority’s approach to a guideline for sentencing in all cases of serious violence. By taking a step to address the specific issues in domestic violence offending, she advances a method for the criminal justice system to better address past harms and to protect victims from future harms. Gourlay J’s approach to sentencing in domestic violence cases is just as necessary now as at the time of the original judgment in Taueki. Although the government Bill proposes an amendment to the Act to include the aggravating factor of offending while subject to a protection order,40 other proposals for family violence specific aggravating factors—including where the offending was part of a pattern of behaviour and where strangulation of a family member was a feature of the offence—were not agreed to by Cabinet.41 In addition, the government has rejected a proposal to criminalise controlling or coercive behaviour in an intimate or family relationship,

38  M Dawson, ‘Intimacy and Violence: Exploring the Role of Victim-Defendant Relationship in Criminal Law’ (2006) 96 Journal of Criminal Law and Criminology 1417, 1424. 39  F Stewart and A Freiberg, ‘Provocation in Sentencing: A Culpability-Based Framework?’ (2008) 19 Current Issues in Criminal Justice 283, 289. 40  Family and Whānau Violence Legislation Bill (n 27) cl 127. 41  Cabinet paper, ‘Reform of Family Violence Law’ (n 26) [41]. In relation to strangulation, which was an aggravating factor highlighted both by Gourlay J and in the majority decision, Cabinet approved a new offence rather than an additional aggravating factor in the Act.

538  Yvette Tinsley stating that ‘such an offence could only be considered if we were satisfied the line between criminal and non-criminal behaviour could be clearly drawn and, at this point, that has not been established’.42 Gourlay J’s approach is also not without precedent: the Sentencing Guidelines Council in England and Wales issued a guideline in 2006, just 18 months after Taueki, which mandated a particular approach to sentencing in cases involving domestic violence.43 In the absence of a Sentencing Council in New Zealand, it is left to the courts to make change to recognise the unique issues involved in domestic violence cases, and this feminist judgment acknowledges and addresses the harm to autonomy and agency that occurs for women who are abused by their partners.

42  Cabinet paper, ‘Reform of Family Violence Law’(n 26) [26]. An offence of coercive and controlling behaviour has been introduced in England and Wales (Serious Crime Act 2015 (UK) s 76), and the idea has attracted scholarly debate in Australia: H Douglas, ‘Do We Need a Specific Domestic Violence Offence?’ (2015) 39 Melbourne University Law Review 434. 43  Sentencing Guidelines Council Definitive Guideline, Overarching Principles: Domestic Violence (London, Sentencing Guidelines Secretariat, 2006).

R v Taueki

5

Court of Appeal  Wellington CA 384/04, 417/04 & 434/04 10 17 February; 30 June 2005 Anderson P, Glazebrook, Hammond, William Young, O’Regan and Gourlay JJ GOURLAY J.

15 Table of Contents Para no

Introduction

[136]

The dynamics of domestic violence

[146]

Sentencing factors

[153]

Summary

[185]

Introduction [136] I have had the advantage of reading in draft the judgment of O’Regan J for the other members of this Court. I am in agreement with them on the application of the Hereora guidelines, and so make no comment on the appeals before us. I cannot, however, agree with the sentencing guidelines for serious violence. I therefore make some observations on those. [137] The judgment of O’Regan J sets out guidelines for serious violent offending. As the cases under appeal show, this encompasses a range of situations, including both ­violence committed by strangers as well as violence occurring in a family or domestic ­context. O’Regan J’s judgment considers the different contexts in which violence occurs in both the culpability factors set out, and in the example scenarios given. At each band, he gives a scenario for domestic violence. [138] I do not support a single set of guidelines which purports to encompass all ­“serious violence”. While I agree with the need for sentencing guidelines for serious violence, it is inappropriate to group domestic violence with other types of violence, for example oneoff street attacks by strangers. The very different situations in which domestic violence occurs makes it quite distinct from a one-off attack by an offender previously unknown to the victim. In turn, domestic violence itself can vary markedly from situation to situation. In terms of sentencing mechanics, the traditional aggravating and mitigating factors have very different implications depending on the type and background of violence. There are potential aggravating factors that are unique to domestic violence which are not listed or explored in O’Regan J’s judgment. [139] In my view, because of the Sentencing Act 2002’s codification of existing and new sentencing principles, and the underlying legislative intent that sentencing should reflect the circumstances of individual cases, it is the right time for appellate courts to start e­ xamining

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the variety of offending that comes before the courts. It is also time to consider whether more specific, principled sentencing guidelines based on the type of offending, not just the charged offences, is appropriate. By “offending”, I mean the specific offender’s actions that have been brought before the court for sentencing. By “offences”, I mean the bare label of what makes up a charge—for example, “male assaults female”, “injuring with intent to injure” or “assault with a weapon”. This focus is important because ­domestic ­violence offending is often quite unlike stranger violence offending, even if the same offence is charged. [140] The Sentencing Act 2002 allows examination of the different types of offending that prima facie come under the same rubric of “serious violence”, including domestic violence. The facts of Mr Taueki’s appeal (CA 384/04), for example, show a very common pattern of domestic violence following separation, including invasion of his ex-partner’s home, previous protection orders and a history of violence, and using a weapon already at the scene. These paradigm facts and the decision of this Court to give a guideline judgment for serious violence make this an appropriate time to re-examine how to sentence in cases of serious domestic violence. [141] Therefore, I add to what O’Regan J says about serious violence generally and set out the more particular factors which should apply in cases of domestic violence, expanding on what he already recognises as relevant to domestic violence. [142] I focus on examples of domestic violence where the male partner is the primary aggressor and the female the primary victim in the relationship. This is, of course, not the only pattern of domestic violence. Further, within that male/female dynamic are other ­situations where different factors might be considered. In particular, as highlighted by the Law Commission, Māori women make up a disproportionate number of women who ­suffer domestic violence (Law Commission Some Defences with Particular Reference to B ­ attered Defendants, NZLC R73, May 2001 at para [8]). There has recently been ­published a report that critically outlines the limitations of Western systems in whānau violence ­(Second Māori Taskforce Transforming Whānau Violence—a conceptual framework (September 2004)). In some cases, therefore, there will be cultural or other factors at play that must also be considered. These are outside the scope of my judgment. [143] The guidelines I set out do not include situations where the female partner responds with violence, in self-defence or otherwise. As O’Regan J identifies, excessive self-defence may sometimes be a mitigating factor. It is important to recognise that in some cases, a primary victim in an abusive relationship can physically retaliate against their abuser, or indeed use violence pre-emptively. This situation was the subject of a Law Commission project in recent years. The Commission discussed various options for reform, including an expanded meaning of self-defence, a new defence of excessive self-defence, and considerable flexibility in sentencing (NZLC R73 referred to at para [142] above, and its preliminary paper Battered Defendants: Victims of Domestic Violence Who Offend, NZLC PP41, August 2000). This issue has also been considered in detail in a number of other jurisdictions. That it has received so much attention, with such varied responses, shows that this particular type of offending is likely to be the least suited to generic serious violence guidelines, and warrants separate guidelines entirely. [144] I do not address domestic violence involving children, as again that involves very different factors (Ministry of Social Development Te Rito: New Zealand Family Violence Prevention Strategy (Wellington, 2002) at p 9). [145] I first set out a necessarily brief summary of the dynamics of domestic violence, as found by the Law Commission after its project. I then explain how these particular ­dynamics might influence consideration of aggravating and mitigating factors in ­sentencing—both those factors going to the starting point sentence, and those going to

R v Taueki—Judgment 541 the personal ­circumstances of the offender. Established sentencing factors can simply be extended to properly reflect domestic violence. Other factors, however, may have to be applied with more caution or in a more nuanced and fact-specific way. The dynamics of domestic violence 5 [146] It is widely acknowledged that domestic violence is a serious problem in New ­Zealand. In 2000, the Law Commission reported that around a quarter of women with current partners and almost three-quarters of women with recent partners (partners from whom they separated within the last two years) reported at least one act of physical or sexual abuse by that partner. Three per cent of women with current partners and 24 per cent of women with 10 recent partners reported that they had been afraid that their partner might kill them (NZLC PP41 at fn 1). In 2004, a study showed that 33 per cent of women in Auckland, and 39 per cent in Waikato, had suffered physical or sexual violence by an intimate partner (Janet Fanslow and Elizabeth Robinson “Violence against women in New Zealand: prevalence and health consequences” (2004) 117 NZMJ 1206). 15 [147] One of the key differences between domestic violence and stranger violence is the background of ongoing control and abuse. While there are often instances of serious physical violence, domestic violence is usually ongoing and takes a variety of forms. The Law Commission, while noting disagreement among experts as to the concepts of “cycle of ­violence” and “learned helplessness”, nonetheless noted agreement about the common 20 components of relevant relationships (NZLC PP41 at para [17]): [T]here is agreement on many of the common components of battering relationships. Examples are: the presence of domineering and controlling behaviour on the part of the abusive male; the presence of psychological and emotional abuse from the abusive male, which may include threats to the woman and her family; the frequent presence 25 of sexual abuse; the destruction of property; and harm to pets and children. [148] There is emerging recognition of the particular nature of domestic violence. Some forms of behaviour are described as methods of exerting “dominance, power and control” (Te Rito, above para [144] at p 9). This means a pattern of controlling behaviour where 30 the offender tries to take away the woman’s liberty and autonomy. Isolation, psychological mind games and abuse are common, as well as emotional and sexual control. In Ruka v ­Department of Social Welfare [1997] 1 NZLR 154, each of Blanchard and Thomas JJ outlined the power imbalance and controlling behaviours exhibited in domestic violence relationships (at pp 157-158, and 171). Thomas J said: 35 … [the] relationship is characterised by the batterer exerting excessive control over the woman. The abuser generally exerts not only physical control but financial and social control as well. Women in these relationships are frequently kept without money, are not allowed friends, and are forbidden to move outside the house without the knowl40 edge of the dominant party. [149] Coercive behaviours have emerged as sometimes the most damaging abuse for some women in abusive relationships, even compared with the more obvious p­ hysical abuse. The Law Commission has also acknowledged this coercive nature of domestic violence (NZLC R73): 45 15 Several submitters emphasised the importance of recognising the often coercive nature of domestic violence. Dr V Elizabeth wrote: [It is important that members of the legal profession and the judiciary ­recognise] the specificity and complexity of the battering context. Violent behaviours—be 50

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they physical, psychological, economic and social—are not just expressive acts but also instrumental acts that coerce the actions of others. The outcome of being coerced through exposure to repeated acts of violence is inevitably the diminishment of possibilities for action: because one fears the repercussions that will follow from taking such actions. This constriction on possibilities for action sets the battering context apart from most other contexts in which people commit crimes against those they know. 16 There is strong support in the literature for the suggestion that domestic violence is often used as a means of gaining power and control over the victim. This proposition was also supported by the individual battered women and groups representing battered women that we consulted. [150] Power and control is a developing concept, but for some years it has at least been recognised that domestic violence is usually not just one isolated physical attack, or even series of physical attacks, but rather a combination of emotional, psychological, sexual and physical abuse (including a range of severity of physical abuse). There can be a relevant pattern of violence or abuse even where there is no power/control element (and vice versa). This abuse can take place often over months or years, a clear departure from stranger violence and one-off attacks. [151] I note further the considerable difficulties victims have in reporting domestic violence and in being believed (noted in NZLC PP41 at paras [17], [19]). There is often a tendency to minimise domestic violence, and treat it as a relationship issue rather than a societal problem. There are still prevailing beliefs that domestic violence is an evenlymatched dispute between two people. Such myths have permeated every stage of the justice system, from reporting to the police investigation, to jury trials and sentencing. Further, victims have considerable barriers to accessing justice when the person they are reporting has so much influence and involvement in their daily life, especially in terms of economic support and childcare (NZLC PP41 at para [19]). [152] Research consistently documents the potential for further, and sometimes lethal, violence when women attempt to leave a violent relationship (NZLC PP41 at para [17]). It is significant that at the very time a woman tries to leave a violent partner, the violence is most likely to escalate. Sentencing factors [153] What is known about the dynamics of domestic violence should inform how various sentencing factors are applied, depending on the relevant facts. The harm to the victim is a mandatory sentencing factor consideration under s 9, and taking account of the interests of the victim is part of the s 7 sentencing purposes. The Sentencing Act 2002 was part of an overall reform package aimed at acknowledging the impact of offending on victims, and as such the message from Parliament is clear. The courts must properly consider the harm done to the victim—not only its extent, but its nature. The courts have a role to properly analyse, where such information is available, the impact of the relevant harm that was done. [154] Recognising features of domestic abuse as aggravating factors in themselves is important because it explicitly and—perhaps even more importantly—accurately acknowledges both the culpability of the offender, and the harm done to the victim. As to culpability, the law already accepts that violence can be made worse because of background facts or an existing relationship, such as a breach of trust between an adult and child, or the victim’s physical or mental vulnerability (see ss 9(1)(f) and (g) of the Sentencing Act 2002 respectively).

R v Taueki—Judgment 543 [155] As to the harm done, it is inaccurate in such cases to say that the victim has suffered harm only from the relevant attack before the court—that is, the physical injuries—when the assault is part of a wider background of abuse. As stated above, harm from coercive controlling or patterns of abuse in relationships is more than physical. It is the now widelyaccepted nature of most (if not all) domestic violence. [156] I start with a new factor not contained in the Sentencing Act 2002, and then turn to certain relevant factors contained in s 9. Power and control or pattern of abuse—new sentencing factors [157] The judgment of O’Regan J does comment on the impact of past abuse, acknowledging that just because violence takes place in the context of a domestic relationship does not mean it is a mitigating factor. He notes that the existence of a protection order could exacerbate offending. It does not address the other aspects and dynamics of domestic violence as set out above at paras [146]–[152]. [158] In my view, the points in O’Regan J’s judgment should be expanded: power and control or patterns of abuse should be discrete aggravating factors in sentencing. They are particular, significant and sufficiently established aspects of domestic violence that go to the nature of offending. Although difficult sometimes to define and identify on the facts of a case, where possible they should inform the sentencing starting point. [159] I acknowledge that the proposition that past abuse or controlling behaviour be taken into account in sentencing for a particular instance of serious physical violence may raise concerns of doubly counting aggravating factors. It could be argued that power and control is covered by other factors such as a position of trust. Another criticism could be formed about double jeopardy: if the offender has been convicted for past offences against the same victim, is it punishing that offender again to take into account a relationship of power and control partially based on past acts? [160] An orthodox application of rules against double counting and double jeopardy should prevent any contravention. For example, where power and control is proved as an aggravating factor of the offending, and the offender has abused the trust his partner had in him as part of this control, further counting an abuse of trust as another aggravating factor will not be appropriate. However, where power and control is not shown, other factors may still be relevant absent this—for example, it may still be appropriate to treat an abuse of trust as an aggravating factor on the facts, especially in a domestic partnership or marriage situation. The two concepts are distinct: just because there is no power and control, does not mean there is no abuse of trust. [161] The courts should be cautious when considering the existence of previous convictions. As O’Regan J states, the modern approach to sentencing uses a starting point that takes into account aggravating and mitigating features of the offending, but excludes mitigating and aggravating features relating to the offender. Usually, previous convictions are seen as relevant to the second, personal factor, stage. For domestic violence, the approach should be different. Where the convictions relate to the same victim, and power and control or a pattern of abuse is established, the relevant convictions should be taken into account at the first stage of sentencing only, in setting the starting point. The previous offending against the same victim forms part of the current offending, in that it indicates its ongoing and coercive nature. If there are remaining convictions that are unrelated to the present victim, they could still be taken into account at the second stage of sentencing relating to the offender, but would result in a lesser uplift, the first ones having already been taken into account. If the remaining convictions are few and unrelated in nature, it would not be appropriate to uplift the starting point at the second stage at all.

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544  Frances Gourlay [162] Another potential criticism of this approach may be that it potentially results in a judge sentencing an offender for actions not before the court. It could appear that an offender is to be sentenced for past offences or conduct not relevant to the offending at hand. [163] This criticism is a misconception of the nature of abusive relationships. Ongoing 5 coercive behaviour or a pattern of abuse do not constitute past, isolated events arbitrarily added to the list of the offender’s crimes. Rather, they form part of the current offending for which he is to be sentenced. Past events are not, in that sense, “past” at all. It would be false to ignore such events and abuse, because they go to the accused’s culpability for the current offending. 10 [164] Further, s 24 of the Sentencing Act provides that any aggravating factor must be proved beyond reasonable doubt. That is the case whether the offender had a knife, the attack was premeditated, and similar. If a defendant wishes to dispute any allegation of power and control or pattern of abuse, there can be a disputed facts hearing. The usual discussion between counsel as to the appropriateness of alleging power and control or past 15 abuse, and prosecutorial discretion and decision-making, will happen. Section 9(1)(b)—in the home [165] As noted by O’Regan J, home invasion is recognised as an aggravating factor. Section 9(1)(b) of the Sentencing Act refers to “unlawful” entry into or presence in a ­dwelling place. While not so difficult when the parties have separated or there is a p­ rotection 20 order in place, much violence takes place in the context of ongoing or hard-to-define relationships, where the parties frequently separate and reconcile, or often stay or live in each other’s homes. [166] Section 9(1)(b) assumes that the intent to commit violent offending will be formed before entering the dwelling place or at some clear point in time while there. But this may 25 not be the case with domestic abuse (premeditation is dealt with below). Another difficulty with fitting domestic violence cases into the model of unlawful entry is that the offender and victim’s home may be the same, either in that they are both living there at the time or he previously lived there and the occupation is not clearly legally, or even factually, set out. [167] The issue of offences taking place in a person’s home in unclear circumstances 30 of ownership or occupation has arisen previously in the context of domestic violence. In R v Leger (2001) 19 CRNZ 114 it was held that although the offender had also been party to the tenancy agreement, the complainant was in possession of the home at the time of the offending so her security was invaded. The Court in that case noted that, in any event: 35

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… the seriousness of the crime and the culpability of the offender does not substantially differ irrespective of whether the home invasion legislation applies or not. In sentencing offenders the Courts have always recognised the sanctity of the home and insisted that violence occurring in a person’s house is to be treated as an aggravating factor calling for a higher sentence. See R v McLean [1999] 2 NZLR 263, at 266; and R v Palmer [2000] 1 NZLR 546.

[168] O’Regan J has properly treated Mr Taueki’s home invasion as an aggravating factor in this appeal, as although it was the house of his former partner and his children, he was no longer authorised to be there. This was clear as he had been living elsewhere. O’Regan J 45 states that the fact the assault “took place in the victim’s home” made it an aggravating factor. Treating these situations as an aggravating factor is therefore accepted: even where the proprietary situation is not clearly or legally defined, if the aggressor has been somehow excluded from the home then enters it, it is an aggravating factor. [169] In my view, supported by the comments in Leger, the fact that serious violent 50 offending takes place in a victim’s home is an aggravating factor even where the ­presence

R v Taueki—Judgment 545 or entry of the offender is not unlawful, and even where both parties lawfully live in the house together. While it would be preferable to have this spelt out in s 9, it is not precluded by the wording of subsection (1)(b). The longstanding view of the common law is that the sanctity of the home is paramount. Courts should recognise that violence in the home is a factor which elevates the seriousness of domestic violence: a person is entitled to safety in their own home. Victims often have nowhere else to go for safety. Further, part of the danger of domestic violence is that it often goes undetected because it takes place in private. Acknowledging this dynamic is necessary to reflect the very nature of this type of offending.

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10 Section 9(1)(f)—position of trust or authority [170] This factor has generally been used in the context of violence or sexual abuse by adults towards children. It has been used whether or not the adult is the child’s parent— positions of trust or authority include non-biological parents, extended family or friends as caregivers or people such as community leaders, particularly where they have some 15 childcare role (R v Accused (CA255/89) [1989] 3 NZLR 560 where the offender was a family friend babysitting or R v Wihapi [1976] 1 NZLR 422 where he was the victim’s uncle, again caring for her). It has also been a factor in doctor/patient relationship offending (R v Fahey CA184/00). [171] I see no reason why the words of the paragraph cannot extend to intimate relation20 ships. Trust is an important component of such relationships, and that is breached when there is violence. In R v Gurnick (2002) 19 CRNZ 627 a man abducted his former partner. The Court said: [17] The fact that the complainant is the mother of the appellant’s children does not justify characterising this offending as somehow of lesser significance. On the con- 25 trary, the facts that the appellant was already subject to a protection order and in terms of s 9(1)(f) of the Sentencing Act 2002 was abusing a position of trust in relation to the complainant aggravate his offending. Section 9(1)(g)—vulnerable victim [172] The concept of a vulnerable victim has been inconsistently applied in the past. The provision refers to vulnerability due to “age or health or because of any other factor known to the offender”. The words “age or health” may suggest that the particular vulnerability must be a physical or bodily characteristic inherent to the victim. Other cases have applied the concept more flexibly, and invoked it where the victim was intoxicated, incapacitated, or physically smaller than the offender, or alone in her house (R v Maxwell HC New Plymouth T6/02, 30 September 2002 at para [16]; however this factor was given much less emphasis by the Court of Appeal: R v Maxwell CA359/02, 31 March 2003). [173] Apart from any inherent physical characteristics such as size disparity, domestic violence also raises many more complex considerations of vulnerability. Often offenders isolate their partners over a period of time, from their families, communities and social support. This is part of the idea of controlling behaviour. It makes victims more vulnerable to the abuse and its continuation, and makes it harder for them to leave or to report it. [174] An expanded view of subsection (1)(g) should take these features of domestic abuse into account. An example in the family violence context is R v Mackness HC Hamilton T023921, 14 April 2003 at para [12]. This was a murder case in which the sentencing Judge held that the victims were vulnerable due to the defendant’s dominating behaviour:

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… You had assumed a parental role towards [the victim] and her sister … you were in a position of dominance over them. You had nailed the main windows in the girls’ 50

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bedrooms shut. Their doors had locks fitted. Kelly in particular had to spend almost all the time she was at home … locked in her room. You not only dominated the children but you also dominated and controlled their mother. You did so to such an extent that she was not able to stand up to you, or at least did not feel able to stand up to you on behalf of the girls.

Attacks to the head and neck [175] O’Regan J has outlined how an attack to the head should be an aggravating factor: the head is one of the most vulnerable parts of the body. In a similar way, there is mounting research to suggest that abusers often strangle a victim in order to assert their power and 10 dominance, and to instil fear, and this is also often an indicator of future serious violence or homicide (see for example, the San Diego study reported in Gael B Strack, George E McClane and Dean Hawley “A review of 300 attempted strangulation cases part I: criminal legal issues” (2001) 21 J Emerg Med 303 at p 305). It is a sign of controlling behaviour and indeed, very threatening. It goes to similar vulnerabilities as an attack to the head. 15 This should be an aggravating factor, too, if it takes place as part of an attack and if not separately charged. [176] The above four factors (occurring in the home, abuse of trust, victim vulnerability, and attacks to the head/neck) can be expanded from their current application to better recognise the specific nature of domestic violence. I turn now to those established aggravating 20 factors that should not be applied in their traditional way in domestic violence cases.

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Section 9(1)(i)—premeditation [177] Courts often consider a person’s culpability to be much elevated where he or she has planned or thought about an attack in advance. This is generally appropriate in the context of a one-off attack on a stranger or acquaintance (although drugs or alcohol or other factors may well be at play), but it can be wholly inappropriate as a primary focus in the domestic violence context. Premeditation in the classic sense involves either planning an attack in advance, with varying degrees of detail and specificity, or at least some foresight and intention for some period of time before the offending. At each of the bands of offending set out in O’Regan J’s judgment, premeditation is a key factor for describing the seriousness. It seems each band is significantly premised on the level of premeditation in the examples given. [178] In ongoing domestic violence cases, an incident of serious violence may not be planned or premeditated in the classical sense, but takes place as part of a wider, ongoing background of abuse. The offender might mete out less serious physical violence, emotional, sexual and/or psychological abuse over a period of time, which may culminate in an instance of serious violence. That final instance of violence may not be premeditated in the classic sense, but can hardly be considered to be unplanned or random against the background of ongoing abuse. It would be false to isolate the one incident and assess whether there was premeditation to commit that particular offending in the lead up to it based on a few hours, and then to have that degree of premeditation bear so significantly on the starting point. Therefore, premeditation should not inform seriousness to such a significant extent as in cases of serious violence towards a stranger or acquaintance. Depending on the facts, an attack with no classical premeditation may still be as serious as one with the highest level of premeditation.

Section 9(2)(c)—conduct of the victim [179] The conduct of the victim is listed as a mitigating factor in s 9(2)(c) of the Sentencing Act. This subsection engages the always complex idea that a victim (or third party) 50 may, through some kind of provocation or action, partly have caused the attack. According

R v Taueki—Judgment 547 to O’Regan J it is not enough for the offender to have simply become incensed, but rather the provocation must be an “operative cause” of the offending. [180] There has been a long and unfortunate association between the idea of provocation and gendered violence. The classic example used to justify the existence of the provocation defence to murder is the situation of a woman’s infidelity, whether real or perceived. On discovery, the man, her partner, becomes understandably upset or angry, and lashes out and kills his partner or the man with whom she is involved. For a New Zealand example see R v Rerekura CA361/87, where the victim had told her partner of around two years, the defendant, that she did not love him anymore. His evidence was she also made comments as to her ability to find other men to engage with sexually. He walked out of the flat they were in, went to his car, took out his hunting rifle and returned to the flat. He cocked his rifle, and fired two shots, one hitting the victim in the head and killing her. Provocation was successfully argued and the jury convicted the defendant of manslaughter. In Holmes v Director of Public Prosecutions [1946] AC 588, such an example was held to justify putting the defence of provocation to the jury. These cases are of murder, where the issue of provocation or conduct of the victim has been explored more fully because of the partial defence. ­Nonetheless, they are still relevant to serious bodily harm in domestic cases where similar arguments are made as a factor reducing culpability in sentencing (see R v Brown CA378/98, where the defendant unsuccessfully argued provocation. Mr Brown argued he was provoked by his ex-partner having a relationship with someone else, and also serving a protection order on Mr Brown). [181] Other accepted examples of provocation include marital or relationship ­breakdown: “crimes of passion” or acts otherwise done in “hot blood”. It has been argued that provocation has been a defence used predominantly by men to defend male sexuality (Elisabeth McDonald “Provocation, sexuality and the actions of ‘thoroughly decent men’” (1993) 9 Women’s Studies Journal 126). Killing or attacking out of anger or other emotion reduces the legal and moral blameworthiness of the offender, and also accordingly reduces the offence seriousness (see Elizabeth Rapaport “The Death Penalty and the Domestic Discount” in Martha A Fineman and Roxanne Mykitiuk eds., Public Nature of Private ­Violence (Routledge, 1994) at pp 224, 235–43). Examples involving strangers are rarer. It seems we as a society accept that provocation can more easily be established where there is some ongoing or longstanding domestic relationship that could well give rise to an emotional response. [182] In my view, there are three keys reasons why there is no justification for a lower starting point for sentencing in circumstances such as those described above, where there is a relationship breakdown or the woman leaves her partner. First, a provocation-based reduction in starting point in these circumstances has the effect of partly justifying or reducing criminality based on a woman exercising her agency by leaving her partner or beginning a relationship with another man. There are prevailing beliefs in society that a woman who is abused should simply leave her partner, and that she is foolish to stay. Often, the difficulties around leaving are not well understood, and do not recognise the coercive and controlling nature of much domestic violence. To partly justify physically harming a woman when she finally does leave is untenable against that background. [183] Secondly, when there is an episode of serious violence in a domestic situation, there has often been previous violence or abuse or power and control over the woman. As with my observations regarding premeditation, whether the man’s actions can really be seen as a crime of passion, or a heat of the moment response, is questionable. Against a background of past abuse, violence in response to infidelity or an exercise of autonomy is not an unexpected, out-of-character reaction to a shocking discovery. Rather, it is likely to be a continuation of a long-existing abusive behaviour which, although it may be difficult to

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548  Frances Gourlay predict, does not properly fit within the characterisation of being provoked by something so out of the ordinary that an extreme response is partly justified. [184] Thirdly, and of greater significance in practical terms, the above examples are directly correlative to the worst violence against women. As stated above, the most dangerous time 5 for a woman in an abusive relationship is when she tries to leave or does leave an abusive partner. That is when her partner is most likely to act with seriously violence, or even deadly force. As a matter of policy, therefore, it is inappropriate for the victim’s behaviour to be invoked as a mitigating factor in cases of domestic violence when it could directly undercriminalise serious violence directed at a woman’s attempts to escape from abuse. 10 Summary [185] A brief summary of aggravating factors in sentencing for serious domestic violence is therefore: 15

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(a) Power and control: where an offender has embarked on behaviour that can properly be characterised as power and control, this is a separate aggravating factor. This involves a pattern of isolation, control, a variety of abusive tactics, and a wearing down of the victim’s autonomy and liberty. The Court must take care when accepting this factor not to double count other factors such as breach of trust or victim vulnerability. (b) Past abuse: where there has been a pattern of past abuse of the same victim, this should inform the starting point. It forms part of the culpability for the current offending. Where this factor is proved, past relevant offences against the same victim should not be taken into account in uplifting for previous convictions. (c) In the home, s 9(1)(b): where an attack takes place in the victim’s home, whether or not the offender also lives there or has legal or factual access. (d) Position of trust, s 9(1)(f): where there is a breach of a relationship of trust, likely to exist in a long-term domestic relationship. (e) Vulnerable victim, s 9(1)(g): the usual considerations of physical characteristics (age, size disparity, disability) will apply. Further, where there has been past abuse or isolation tactics, the victim may be properly classed as vulnerable. (f) Attack to the head: attacks to not just the head but also the neck and shoulder area, including non-fatal strangulation. (g) Premeditation, s 9(1)(i): premeditation should not inform the starting point too heavily. In the context of ongoing abuse, the attack may not be classically premeditated but part of continuous offending. Courts should be wary of using premeditation as the sole or primary conceptual starting point for seriousness. (h) Conduct of the victim, s 9(2)(c): courts should be careful of treating the conduct of the victim as a mitigating factor, particularly where that conduct is (perceived or real) infidelity and/or where there has been past abuse. Mindful of the dynamics of domestic violence and the facts of the case, the sentencing court should carefully consider whether the offender’s reaction is properly characterised as a one-off, out-of-character response warranting a discount.

[186] Domestic violence is not a small component in New Zealand’s overall serious vio45 lent offending, but rather an unfortunately common—even prolific—type of offending. On the back of growing social research and legal acknowledgement of its unique dynamics, it is appropriate to form specific guidelines for this type of offending, to better and more accurately reflect its nature and the harm done. [187] The above provides the initial starting principles for sentencing for serious domes50 tic violence and its aggravating factors. More factors, or different factors, may well be

R v Taueki—Judgment 549 relevant depending on the case. While perhaps more difficult than the approach of a single guideline for all serious violence, an approach that acknowledges the variety of offending before the courts must be in line with the broader, more flexible purpose of the Sentencing Act 2002. [188] I am in agreement with the other members of this Court as to the appeals before us under the application of Hereora: Messrs Taueki and Roberts’ appeals are dismissed, and Mr Ridley’s appeal is allowed. As to sentencing going forward, I would issue different sentencing guidelines as they relate to the aggravating and mitigating factors for serious domestic violence offending. Taueki and Roberts: appeal dismissed; Ridley: appeal allowed.

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