Kei nga mana, Kei nga reo, Kei nga mana tiketike o te Ao Ture i Aotearoa
Tēnā koutou katoa.
He hōnore ano, he tohatoha atu ki a koutou ētahi whakaaro, ka whakatokia ētahi purapura, hei poipoi i te hinengaro
me te ngakau o nga whakatupuranga o muri.
Tēnā koutou, Tēnā koutou, Tēnā tātou katoa.
[To you all, the esteemed luminaries , the highest authorities of the Legal World in Aotearoa I bid you greetings
It is indeed an honour to share with you today, some thoughts, and to plant some seeds to nurture the mind and the heart for the benefit of those whom you will serve into the future
Greetings one and all]
It’s a special pleasure to join you here to celebrate the 25th anniversary of the Law Faculty’s tenancy of this magnificent historic building, widely recognised as one of the great wooden buildings of the world.
I recall being a member of the committee of law school alumni in the mid 1990s which was tasked (by the then Chancellor Sir Douglas White) with raising the very significant level of funds needed to transform the building into a law school.
At the time, the idea of the Law School calling this home seemed very ambitious, and impossibly expensive, but our committee was convened with admirable focus and discipline by Sir John Jeffries. Fortunately, he was a very hard person to say no to!
And here we are.
This building has had a long and fascinating association with the Crown and law-making in Aotearoa New Zealand. It has housed many different branches of government and law-making since it was completed in 1876.
At that time, the nation was transitioning from provincial government to centralisation of political power in Wellington. Over the years, it has housed Ministers of the Crown, the Cabinet Room, and the entire Wellington-based public service.
Until 1948, Governors and Governors-General presided over The Executive Council here. And most recently, the Supreme Court judges had their offices here until the Supreme Court building was completed in 2010.
If only these ancient timbers could talk. Given their history, what fascinating stories they would have to tell to the staff and students of the Law Faculty.
Today, our focus is on the last 25 years. It’s an opportune moment to reflect on how New Zealand
law has changed and developed during that time.
As with any good common law tradition, I should build on precedent. In this case, I am fortunate that I can draw on remarks by one of my predecessors, Sir Michael Hardie-Boys, at the centenary of the Faculty of Law in 1999. On that occasion, he reflected on the previous 50 years of law and the history of the Law School.
In 1949, when he began his studies, all lectures were held in the Hunter Building on the main campus. There were around 15 or 20 law students in his year, and only two of them were women.
When I arrived at University in the mid-1970s, the numbers of first year law students had increased dramatically. I recall that my first year Legal System class began the year with around 300 students, but rather surprisingly, I think the percentage of female students remained similar, if not lower than in Sir Michael’s day. My recollection is that fewer than 10 percent of us were female.
I shall resist the temptation to divert into an analysis on the history of women in the law profession. Much has been written and said on this subject – suffice to say that, at last, diversity in all its aspects is now recognised as essential for our profession and indeed our modern society.
My time in the Law Faculty, first as undergraduate and then post graduate student, then as a faculty member, lasted over a decade. I survived the horrors of the Socratic method of teaching and looking back, I am very grateful for the legal training I received. It has provided me with an invaluable foundation that has stood me in good stead throughout my career in law, business, and the public service.
It was my great fortune to be taught by some fine lawyers and teachers of the law. Indeed Professor George Barton and Sir Ken Keith were instrumental in sparking my interest in public law.
In his 1999 speech, Sir Michael noted the remarkable expansion of law that had taken place since 1950. He said:
“We might wonder whether the two instruments of change, Parliament and the Courts, may not
have run out of steam.”
In 2021, it’s clear that those engines of law reform did not suffer from a lack of fuel – and if anything – the pace of change has accelerated. Cultural, technological, political and economic developments have challenged Parliament and the courts beyond anything that could have been anticipated at the turn of the millennium.
Sir Michael observed that to some extent, the rate and the nature of future change would depend on the wider world beyond our shores.
A global pandemic was probably not what he had in mind.
But as a result of COVID 19, we did indeed see the Executive Government demonstrate huge flexibility last year to support urgent and complex government decision-making.
Parliament adapted at speed, forming the Epidemic Response Committee to exercise its crucial role in holding the government to account. And I can personally vouch for the speed with which the Executive Council evolved to the new realities of virtual decision-making.
The judicial branch played its part in acting as a check on the exercise of executive power.
And the events of 2020 provided plenty of fuel for the members of this Faculty in your roles as commentators and critics – using virtual means that were not on the horizon 25 years ago.
Another significant feature over the last 25 years has been in the steps we have taken to indigenise the New Zealand Constitution.
We need only look across the road to be reminded of the establishment of the New Zealand Supreme Court in 2004, and the abolition of the right of appeal to the Privy Council.
In 1999, Sir Michael reflected on the status of the Treaty of Waitangi, which had become central to many of the more recent constitutional issues that had emerged.
He remarked that the jurisdiction of the Waitangi Tribunal did not go back far enough; nor were powers extensive enough for many in Māoridom.
He said “The demand for rangatiratanga is growing more insistent. It cannot be ignored or kept
indefinitely in the too-hard basket. A means must be found of giving effect to it within the
modern multicultural nation we have become.”
Since that time, the Waitangi Tribunal has played an important role in furthering the constitutional relationship between Māori and the Crown, through landmark inquiries such as the Muriwhenua Land and Taranaki reports, the Foreshore and Seabed inquiry, and Wai 262 ‘Ko Aotearoa Tēnei’.
There has also been a significant evolution of the tools used by the Crown in Treaty settlements, in recognition of the partnership laid out in the Treaty of Waitangi.
When the Te Urewera Act was passed as a result of the Treaty settlement with Tuhoe, Te Urewera ceased to be a national park, and became a legal entity, with all the rights, powers, duties and liabilities of a legal person.
As Sir Pita Sharples put it at the time, the settlement was a profound alternative to the human presumption of sovereignty over the natural world.
In 2016 – in another world first – Te Awa Tupua was declared by Parliament to be a legal person, an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements. The law now honours and reflects the world view of the iwi of the Whanganui River, recognising their ancestral relationship with it.
Increasingly, redress is recognised in joint governance arrangements for resource management, and in the acknowledgement of intangible rights and cultural values through settlement legislation.
Our courts, including recently the Supreme Court, are increasingly exploring the role of tikanga in the New Zealand legal system.
The interaction of tikanga Māori and the common law plays out on three levels:
as underlying values informing the interpretation and development of the common law;
as a source of private rights and obligations; and
as a consideration in public decision-making.
Judge-made law has been significant in reorienting law reform to our particular cultural and political context, and the Supreme Court has certainly demonstrated its capacity to guide the development of the common law in a way that reflects local values and contexts.
Other changes and developments have resulted from a new focus on rights compliance through the exercise of public power.
In 1999, Sir Michael referred to the relatively recent passage of the New Zealand Bill of Rights Act 1990, which he described as setting some basic standards of legislative and administrative conduct, achieving greatest practical significance as a shield for offenders, but also beginning to suggest itself as a weapon for those wrongly done by at the hands of the State or its agencies.
In 2021, we reflect on the decision in Taylor v The Attorney General, that the High Court has the power to make a formal declaration that legislation is inconsistent with a right or freedom affirmed in the Bill of Rights.
We can conclude that the Bill of Rights Act has become a constitutional document in its own right.
In 1999, information and communications technology was in its infancy. The law had not yet begun to turn its mind to the future regulation of those areas of our lives.
Now, science and technology are of central importance to societal goals and aspirations, and to our relationships with each other. Artificial intelligence and other digital technology are rapidly outpacing law reform. I suspect this will continue to be the case in the years ahead, meaning that
adaptability in our legal system will be as important as consistency and predictability. Science, particularly genetics and chemistry, could be said to be in the same category.
The law will need to become more astute and agile in recognising and incorporating scientific measures and concepts. Legislators and policy makers will increasingly need to consider how to communicate complex scientific concepts through the law and regulation.
Environmental and geosciences, in particular, will become more significant as politicians continue to grapple with the long-term issues posed by the climate change crisis.
I note that these areas of law reform were all mentioned by Sir Michael in 1999. While there have been myriad developments since then, none of these topics would be out of place as subjects for this University calendar year.
That they continue to be such a keen focus of interest indicates the enduring complexity of these challenges in the 21st century.
And what of the future? On anniversaries, it is tantalising to consider what other opportunities and challenges might lie ahead.
When it comes to constitutional reform, there is often talk of the need for broader societal
‘conversations’ – which implies an exchange of trust, consideration, flexibility in viewpoint, and integration of different values and ideas.
Everyone involved in law reform, and in cultivating and inspiring the future agents of law reform, has a responsibility to embody and promote these values.
At the end of last year, Chief District Court Judge Heemi Taumaunu laid out a strategy for
transformative change in the District Court, calling it “a concerted call to move towards a more enlightened world, to move towards te ao mārama, not just for Māori, but for all people of all ethnicities and from all cultures who are affected by the business of our court.”
The Chief Justice has referred to the legal profession, the judiciary and Parliament, as renovators of the house of law in New Zealand, to enable it to respond and serve all Māori and non-Māori New Zealanders, regardless of culture or ethnicity.
These are admirable signals that the judiciary and the legal profession are committed to maintain a sense of awareness and respect for the human element of the law.
After all, beyond the academic and systemic aspects of the law, it exists fundamentally to serve those that seek justice.
This evolution will be reflected in law reform through the common law, the product of lawyers and judges who may be called on to assess and argue questions of public policy and make judgements on how they will apply.
Those matters are not just critical to individual litigants, but also shape the discourse of societal values. It is crucial for lawyers – and their educators – to acknowledge that deep responsibility, and to work proactively to meet the new circumstances in which we find ourselves.
Just last week it was announced that tikanga Māori and Te Ao Māori concepts are to be part of
core legal education in all our Law Schools. That really will create a sea change for our future
lawyers’ understanding and approach to our law.
I leave you with the thought that in considering how we should govern our future, we might consider our environment or te taiao in a wholistic way, where humans are not in a position of inevitable preeminence.
In a recent article, Dame Anne Salmon suggested that we should abandon the binary logic of Cartesian dualism and the chain of command approach in the way we organise our society, and in particular, ownership of resources.
She posited that we need to rethink identity in a whakapapa framing that includes other living systems and life forms, rather than with a fundamental split between humans and the environment, where humans always come first.
Should we forgo our presumption of human sovereignty over the natural world? Just as we have in the Whanganui River and Urewera Acts? These are existential challenges we will need to address in the next 25 years. They may assist as we grapple with the concepts of tino rangatiratanga, kaitiakitanga and kotahitanga.
I close with congratulations to you, as a Faculty, on your invaluable role as informed commentators, constructive critics and productive generators of law reform.
And, most importantly, in nourishing the young minds of future lawyers and litigants, Parliamentarians and protestors, judges, and quite possibly future Governors-General, you are laying the foundation for the future course of law reform in this country.
I wish you every success with those significant responsibilities.
I hope you will continue to draw inspiration from these venerable timbers, imbued as they are with the korero of generations of people who have helped shape the course of our nation’s legal journey.
Na reira, kia ora huihui tatou katoa.