LawNews - Issue 37 by The Law Association

NEWS Oct 20, 2023 Issue 37

Inside ■ POLITICS

A decent government P08-09

■ JUDICIARY

Justice Paul Davison’s final sitting P12-13

A referendum on the principles of

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THE TREATY?

Contents 03-07 REFERENDUM REGULATOR SEPARATISM

What does ‘giving effect to the treaty’ actually mean? The final of a three-part series

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Oct 20, 2023 Issue 37

TREATY OF WAITANGI

Incorporating the principles of the treaty: where to from here? Why do we want a debate on the principles? Because we want to divide the country? Because we want to unify it?

NZLS should advocate for equality under the law and resist any attempt by the government to require the legal profession to engage in separatism

Reweti Kohere New Zealand’s lawyers are standing at a crossroads over their future regulation and representation. Much disagreement exists about the creation of a new, independent watchdog and the insertion of a Treaty of Waitangi clause in any new governing statute. The legal profession isn’t sure of the impact a treaty clause would have on its day-to-day work. For some lawyers, te Tiriti plays no role in their practice. For others, however, it’s central to their work. While the current regulator, the New Zealand Law Society (NZLS), has tried to assuage lawyers’ fears by saying the treaty obligation will be placed only on any new, independent regulator, some in the profession are struggling to understand how this obligation won’t affect the very people the regulator would be overseeing. And so much detail remains to be worked out. Though the profession is deeply divided on the issue, NZLS has accepted the recommendation in principle. As The Law Association’s president, Tony Herring, recently told members: “It is premature to send a report to the minister before NZLS has reached a clear and consistent position on the review panel’s recommendations.” The profession’s concern about the role that te Tiriti would play in its regulation is a microcosm for New Zealanders’ anxiety about the future of the treaty. The 200th anniversary of its signing looms on the horizon, but even closer is a proposal from the Act Party to legislate the principles of the treaty and put them to a referendum. The constitutional place of our country’s founding document hangs over us. Where to from here? Might New Zealanders finally imprint their democratic authority on the principles by affirming or rejecting definitions that Parliament might set down for the first time? Do we continue down the road, slowly and surely, of Crown-Māori relations? Do we try to ask bigger-picture questions: should we formalise our founding partnership in

In the final of a three-part series on the principles of the Treaty of Waitangi, LawNews asks what it means to give effect to the treaty

a written constitution? Or might the country embrace what many respected Māori leaders and experts have described as “constitutional transformation”?

No case exists A new statute for the regulation of lawyers could include the following standalone, overarching treaty clause: “All persons exercising powers and performing functions and duties under this Act must give effect to the principles of Te Tiriti o Waitangi.” NZLS accepts the draft clause’s current wording will apply more broadly than simply to the independent regulator. Moreover, the independent review panel’s report states a treaty clause would “guide how the regulator engages with the profession and the public and fulfils its functions”. NZLS’ response document states, “the wording of any proposed te Tiriti clause would need to be considered in detail to ensure it is fit for purpose for a professional regulator”. Many lawyers are not sure how the treaty clause will play out in reality. One lawyer who responded to NZLS’ survey on the panel’s recommendations said he has rarely dealt with Māori issues in his 30 years of practice. “The treaty is not relevant to the vast majority of the work that we do. Therefore, this proposal will create confusion and uncertainty. It is simply the wrong focus for most practising lawyers,” he said. Another respondent said it was “all very well to say we will do this, but we need to actually have a plan”.

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Act wants to take out of te Tiriti o Waitangi the key provision about Māori selfdetermination, authority and sovereignty

Some lawyers are explicitly opposed to the inclusion of a treaty clause. Barrister Gary Judd KC argues that no case exists for creating a new obligation for lawyers to uphold the constitutional principles contained in the treaty for they are already a part of the rule of law. The treaty upholds the rights of individuals and recognises that all are equal before the law, he says. Including a treaty clause “would extend separatism, or the potential for separatism, to the way the profession is regulated and represented and the way lawyers deal with individual members of society. “NZLS should take the exactly opposite tack. It should advocate for equality under the law and resist any attempt by the government to require the profession to engage in separatism.” Some basic questions must be answered: what does it mean to give effect to the treaty? Who must give effect to it and when should lawyers honour the treaty? “Only when Māori are involved? Who is a Māori party? Ngāi Tahu Fisheries – is it a party because it’s owned by Ngāi Tahu or is it a fishing company like Peter Talley’s [Talley Group]?” asks Wellington lawyer David Cochrane, a former Chapman Tripp partner and Waitangi Tribunal member. “What about Sealord, which is half-Japaneseowned and half-iwi-owned? You get into a real pickle if you’re trying to say you’d do something different sometimes and not others.”

‘Functus officio’ LawNews sought an interview with the review panel’s chair, Auckland University Professor Ron Paterson, to ask how the principles might be incorporated into an amended Lawyers and Conveyancers Act. In declining, Paterson said in an email: “Our work as the independent review panel was complete and we became functus officio once we delivered our report to the Law Society on 1 March 2023. Particularly now that the Law Society has formally responded to the independent review, I don’t think further comment from me as chair would be appropriate. The report must speak for itself.” Paterson has, however, responded to similar questions since the panel wrapped up its work, in an interview with The Platform broadcaster (and former Morning Report host) Sean Plunket in May this year. Repeatedly asked what treaty principles had the panel mentioned in its report and where else they could be found and defined, Paterson said he refused to be drawn “into that debate”, only to finally concede he couldn’t articulate what the principles were. “Surely, they must be codified somewhere?” Plunket asked. “I’ve been looking for them for years and I just cannot find what the principles of the Treaty of Waitangi are.”

easy, Bankside Chambers barrister Kingi Snelgar (Ngāpuhi, Ngāti Whakaue, Te Whakatōhea and Ngāi Tahu) accepts. But the District Court’s rolling out of Te Ao Mārama – a judicially led kaupapa designed in partnership with iwi and communities which will take the best initiatives from New Zealand’s specialist and therapeutic courts and embed them throughout all 58 courthouses – will prove a “radical shift” in the administration of justice, he says. Chief District Court Judge Heemi Taumaunu (Ngāti Pōrou, Ngāti Konohi and Ngāi Tahu), in his Norris Ward McKinnon lecture in 2020, said the promises exchanged between the treaty parties seemed, on one view, to imagine the creation of “an enlightened world, te ao Mārama”, where Māori and Pākehā could prosper together. That vision now extended to include all New Zealanders, regardless of culture or ethnicity. “The District Court response to the calls for transformative change will be known as the ‘Te Ao Mārama model’,” the chief judge said. Snelgar says the radical shift will require lawyers to know what the treaty means in order to give effect to it. While the profession is improving its understanding, there’s still a way to go. An understanding of te reo Māori and tikanga will be crucial too. The profession should keep an open mind, he urges. If a commercial lawyer, for example, doesn’t deal with the treaty now, he or she might well do so in the future. “You could argue the rapidly growing Māori economy is going to mean that [the treaty] is not just going to be trendy in criminal and family law, but also commercial property”, Snelgar argues. “The profession needs to – and I think they are – have the foresight to think ‘how can we ensure that in 20 years we are up-to-speed if tikanga is part of the common law?’”

All New Zealanders By 2040, the 200th anniversary of the signing of the treaty, New Zealanders may have had just under 20 years of living under Parliament’s definition of the treaty principles – should the Act Party get its preferred treaty referendum. Pre-election, some 60% of voters in a Taxpayers’ UnionCuria poll would back the party’s proposal to enshrine in legislation what it says are the treaty principles; 18% opposed the legislative proposal and the remaining 22% were not sure. However, less than half of voters (45%) wanted a referendum on the idea; a quarter opposed a nationwide vote and 30% were uncertain. Already, political leaders are warning of wide-scale social disruption and mass hikoi, the likes of which New Zealand won’t have seen since the 2004 Foreshore and Seabed Act protests, if Act scores a policy win. Before the election, Act List MP Nicole McKee (Ngāpuhi) explained a Treaty Principles Act would be “short but decisive” in defining the principles as: ■ all citizens of New Zealand have the same political rights and duties;

An enlightened world Reflecting te Tiriti in a lawyer’s day-to-day practice, beyond some of the superficial ways Māori culture is honoured, isn’t 04

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Oct 20, 2023 Issue 37

Continued from page 04 ■ all political authority comes from the people by democratic

There is no case exists for creating a new obligation for lawyers to uphold the constitutional principles contained in the treaty for they are already a part of the rule of law

means including universal suffrage, regular and free elections with a secret ballot; and ■ New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal. These principles are based on the party’s interpretation of the treaty articles. Its policy document states: ■ the New Zealand government has the right to govern New Zealand, based on rangatira giving “absolutely forever” the complete kāwanatanga of the country to the Crown on the condition the government couldn’t arbitrarily take their property and that Māori would enjoy the same rights and privileges as British subjects; ■ the government will protect “all New Zealanders’ authority” over their land and other property, based on the article two guarantee that was afforded to chiefs, hapū “and all the people of New Zealand”; and ■ “all New Zealanders” are equal under the law, with the same rights and duties – an “unequivocal” guarantee of equal rights for all, based on an interpretation of “ngā tikanga katoa rite tahi”.

Amputated chieftainship The interpretations have been swiftly criticised. During The Press leaders’ debate between the minor parties last Tuesday, Te Pāti Māori’s likely MP for Te Tai Tonga, Tākuta Ferris (Kāi Tahu, Ngāti Kuia), said a referendum couldn’t vote away the treaty. "It’s a permanent fixture of the constitution of our country and it is not going anywhere.” Pointing to Act Party leader David Seymour (Ngāpuhi), Ferris called him “treaty illiterate”. Thorndon Chambers barrister Max Harris on Twitter has warned that Act’s referendum isn’t so much a referendum as it is an “amputation” of article two’s protection of tino rangatiratanga, or Māori chieftainship or absolute authority. In turning the treaty article into a general statement about all New Zealanders’ authority over land and property, Act has distorted

its meaning, Harris said. “Put simply: Act wants to amputate tino rangatiratanga from the body of the treaty. They want to take out of te Tiriti o Waitangi the key provision about Māori selfdetermination, authority and sovereignty.” Auckland University Associate Professor Aroha Harris (Te Rarawa and Ngāpuhi) has made a similar point: while it is technically correct to translate “ki nga tangata katoa o Nu Tirani te tino rangatiratanga” as the authority of all people of New Zealand, the interpretation is missing the context that in 1840, hapū were permitting kāwanatanga to exist as a subset of their tino rangatiratanga. “A referendum is not a debate,” Professor Harris tells LawNews. “A referendum is a vote. Really, what Seymour is saying is ‘I don’t like the principles that we’ve got and I’m sick of them. We should change them’. To me, that’s not a debate about arguing that we don’t need them,” she says. “That we do need them, to me, is not the debate we need. We need a debate that asks everybody openly ‘what’s the guidance we need here?’” A referendum is too crude a process for a complex and nuanced matter like te Tiriti. Harris says the framing of referendum questions is problematic as it must always produce a binary yes or no answer, devoid of any subtlety or flexibility. She wonders if there are alternatives. “Do we need to modernise democracy now and think of other ways representation might work? How can you pull your representation to get some push-through at the national level? How can you have a democracy that ensures minorities get listened to? Because we don’t have to [listen to them] if they’re outvoted.”

Constitutional transformation The Matike Mai report might hold some answers. Established in 2010 at a meeting of the Iwi Chairs’ Forum, the Independent Working Group on Constitutional Transformation was tasked with developing and implementing a model for an inclusive constitution for Aotearoa New Zealand, based on He Whakaputanga o te Rangatiratanga o Niu Tireni o 1835 (The

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The treaty is a permanent fixture of the constitution of our country and it is not going anywhere

Declaration of Independence), te Tiriti, and other indigenous human rights instruments. Chaired by Professor Margaret Mutu (from Ngāti Kahu, Te Rarawa, Ngāti Whātua and Scotland) and convened by the late Dr Moana Jackson (Ngāti Porou and Ngāti Kahungunu), the working group attracted participation from 10,000 people across 252 hui between 2012 and 2015. It concluded that any new constitutional model could be properly developed only once there was clarity about any underpinning values. More thought-provoking was the working group’s six “indicative” constitutional models – indicative partly because “they simply indicate the range of possibilities that are available for those who really want a good faith honouring of Te Tiriti”, it says. Underlying the options is that te Tiriti envisaged the continuing exercise of rangatiratanga while granting a place for kāwanatanga. One option is a three-way model, where Māori make decisions for Māori in a “rangatiratanga sphere”, the Crown makes decisions for its people in a “kāwanatanga sphere” and the site in which Māori and the Crown work together “as equals” is the “relational sphere”, where a conciliatory and consensual democracy would be most needed. The working group accepted that some Pākehā would see the process as divisive and threatening or would dismiss it as unrealistic. By contrast, many would accept te Tiriti is about “a constitutional relationship, as every treaty is”.

Rigorous deliberation The Matike Mai report indicates the status quo is unsustainable, argue Sir Geoffrey Palmer and Dr Andrew Butler in Towards Democratic Renewal. At some point, the working group’s ideas – many of which are “rich in conception” – will emerge onto the political agenda. “We believe that it is preferable to begin the discussion before a crisis point is reached…[Their ideas] deserve to be discussed to see what concrete proposals can emerge from them,” the pair write. In advocating for a written, codified constitution that incorporates the treaty, Sir Geoffrey and Butler note that no other topic they canvassed has generated “such polarised views, nor as much heat” as te Tiriti has. Their initial proposal in 2016 would have required Parliament and the government to give effect to the treaty while empowering the courts to interpret and enforce it – an acknowledgement of the treaty’s foundational constitutional status. In response to widely divergent submissions, the pair in 2018 accepted that more discussion is needed to determine what te Tiriti looks like in contemporary Aotearoa New Zealand. Their amended proposal suggests the treaty would still form part of New Zealand’s superior law while detailed provisions would be worked out through a “rigorous public deliberation process” to find some reasonable common ground. Collaborating with Matike Mai could be one way to foster discussion with Māori, a 06

process that would have to run alongside discussions with nonMāori. “Reaching finality on these issues is likely to take years… efforts must be made to ensure all views are heard and heeded,” the duo write. Every 10 years, New Zealand would have to reconsider its constitution. Following a deliberative, democratic consultation process, any amendments would need to receive support from three-quarters of MPs or a majority of voters. “If our approach to the constitution is accepted, the treaty will continue to be central to New Zealand’s ongoing constitutional dialogue; no one generation will lock future generations into a fixed view of the treaty and each generation will have the chance to address it,” Sir Geoffrey and Butler say. Snelgar, who supports Matike Mai’s fundamental message of a by-Māori, for-Māori approach to constitutional transformation, accepts the working group’s indicative models can be perceived as radical. But “it’s trying to reflect what was agreed in the way that we govern our country. And it’s not uncommon for indigenous people to have self-governance – just look at the US, Canada”, he says. “There are more and more people around the world becoming more and more interested in developing their own institutions, their own nations.”

‘The sour right’ Discussion is always a good thing, says barrister and former Attorney-General Chris Finlayson KC, which is why he doesn’t necessarily disagree with Act’s desire for a public debate on the principles. But a referendum is not the way to go. There is a risk that “the mad and the bad” will hijack it. “’The veneer of civilisation’, as Margaret Thatcher said, ‘is very thin’ and it doesn’t take much to bring them out,” Finlayson says, remembering the vitriolic letters he received after the Marine and Coastal Area (Takutai Moana) Act 2011 became law. Comments such as ‘how dare you give property rights to people above their station? Why don’t you get cancer?’ he tells LawNews. “I mean, there are some unpleasant people out there. Most New Zealanders are pretty fair-minded people and have bought into what successive administrations have done since Jim Bolger started [the treaty settlement process]. “But there is an element [out there], what was once called ‘the sour right’ – people who dream of a world that never was and never could be. They resent the future, try and stop the waves crashing in. You can’t stop them.” New Zealanders are “practical souls”, says Finlayson, who accepts there are moments in time for “arid” constitutional debates. “I just don’t think now is the time.” Cochrane fears a referendum will most likely sow the same seeds the Voice referendum in Australia has sown: conflict, division, uncertainty. “I think Seymour is not stupid. He’s lots of things, but he’s not stupid. He knows that, by starting a debate on the principles, it’ll never end, for one thing. And there’ll be a

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Oct 20, 2023 Issue 37

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have survived thus far without them.”

The starting line

A referendum is too crude a process for a complex and nuanced matter like te Tiriti

lot of division,” he says. “And he’ll be able to say, ‘I proposed a referendum but you can’t even agree on the question’.” Why do we want a debate on the principles? he asks. “Because we want to divide the country? Because we want to unify it? Because we want to know whether they create rights or not? You’ve already got the courts and the tribunal in there dealing with that,” Cochrane says. “To me, the answer from Seymour is ‘I want to create havoc. I want the debate because it’ll go on forever and, in the meantime, you can’t put references to the principles of the treaty in a statute because you can’t tell what they are.’ So he might stop new ones being put into statutes.”

A different bedrock Sandra Goudie, a former Coromandel MP and former mayor of Thames, believes that upholding individual rights and freedoms without punitive action, respecting property rights and treating everyone equally under the law should be the bedrock of any constitution. “Add to this certainty and clarity in the law, which is fundamental for a just and open democracy. To achieve this, we do not need any more furore over trying to establish ‘treaty principles’ which, as some rightly pointed out, were never referenced in the Treaty of Waitangi.” Goudie is in no doubt about what needs to be done: state institutions must step up. “The Ombudsman’s Office, the Auditor General and the Law Commission should require better outcomes than a declining quality of our law, with its increased uncertainty, lack of clarity, disenfranchisement of people’s rights and lack of understanding in practical application. “Where is the integrity and efficacy of the law when Parliament itself does not value the construct of it enough to do it well? And using the majority position of power to push through law which is un-costed, ill-conceived and with little empirical data to support it?” Goudie is now asking the Ombudsman’s Office to remove all reference to the treaty principles. “New Zealand and its people

If the election is any indicator, achieving a consensus on te Tiriti will be impossible. Snelgar says the political climate is the most toxic he’s observed since Don Brash’s Orewa speech as National Party leader in 2004. “We are miles away from being ready to engage in any constitutional dialogue in a meaningful way because some people don’t even accept that Māori are indigenous, some people don’t accept the treaty.” In a nod to Matike Mai, identifying the values that all New Zealanders share could help. “You can bring people together based on shared values, so that might even just be a dialogue that needs to happen independent of how those values might be reflected in any framework,” Snelgar says. “My concern at the moment is it’s not a pleasant time to be Māori. It’s not a really pleasant time to talk about anything to do with indigenous rights. It’s not very healthy for our country because of the way our politicians are capitalising on ignorance and fear of Māori rights.” Continuing to debate the principles will impede progress, Cochrane says. Instead, effort should be directed at how the basic obligations created under the treaty can help solve the myriad of crises afflicting our systems. “Someone put it to me one day that it’s not just a case of throwing money at things – but money is a big part of it. It’s like saying everybody can participate in a running race, but some of us have got the latest track shoes and have been well-nourished and well-fed and trained. Some of us are running in boots and we haven’t eaten enough protein and nobody explained to us what training was,” he says. “Pull the trigger and guess who wins the race? It’s more a case of trying to even up the starting line…because you’ve got inequities at the moment. You’ve got too many Māori prisoners relative to their population. You look at it and go, ‘why?’” ■ Journalist Rod Vaughan also contributed to this story ■ Part 1 of the series can be read here and part 2 can be read here

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POLITICS/OPINION

A decent government Thirty-eight percent of the party vote in no way exempts National from responding to the needs of the 17% of New Zealanders who voted for Act and NZ First

The most important consideration for all three participants in the coalition negotiations to bear in mind is that the change most New Zealanders most want to see is a decisive change in the conduct of the political class, the public service and the news media

Chris Trotter It wasn’t all peace, love and mung beans in the early 1970s. Not in New Zealand, anyway. When the Norman Kirk-led Labour government barnstormed to power in 1972, social-conservatism was still the default setting of most New Zealanders, meaning that it was also the default-setting for most members of the Labour Party. On the issues of abortion, homosexuality, drug-taking and pornography, Labour’s liberals constituted a tiny minority. Kirk himself, raised in the deeply conservative Salvation Army and married to a deeply conservative wife, was no particular friend of Labour’s liberals – at least not on the issues which, 50 years later, have more or less come to define the New Zealand Left. In an early, and now long-forgotten, gesture to Labour’s conservative supporters – including the quasi-official Catholic weekly The Tablet, which had come out strongly for Labour in the run-up to the 1972 general election – Kirk and his conservative working-class allies saw to it that all incoming copies of the (then) scandalous Penthouse magazine were impounded at the border. While Kirk remained prime minister, teenage boys would riffle through the newsagents’ top shelves in vain. A small gesture, which today’s Free Speech Union would doubtless condemn, but it sent a message of reassurance to a substantial fraction of Labour’s electoral base. This would be a decent Labour government. Christopher Luxon would be wise to send out a similar message to the angry conservatives whose votes have propelled National, Act and NZ First into government. Something small, virtually costless, yet potent enough to reassure all those who went out of their usual way to make sure Labour lost. Something to show that their efforts have not been in vain. A gesture making it crystal clear that the balance of socio-cultural power has indeed shifted decisively away from the “progressives” who have wielded it for the past six years. Something to dispel any lingering “meet the new boss, same as the old boss” fears that nothing’s going to change. There must be change. Luxon gets this, but his notion of change seems considerably less ambitious than the change

envisaged by conservative voters inhabiting the political territory beyond National’s comfort zone. These voters are expecting a lot more than tenancy law reform, the repeal of Labour’s union-friendly legislation and tax cuts. Luxon and his team cannot ignore these voters. Thirty-eight percent of the party vote in no way exempts National from responding to the needs of the 17% of New Zealanders who voted for Act and NZ First. If the dominant coalition partner attempts to do so, and if the smaller partners look the other way, then their supporters will leave them in search of firmer friends. Which is why Act and NZ First will not look the other way. David Seymour has already openly repudiated the taboo forbidding “minor” parties from using the only effective leverage they possess – withdrawing confidence and supply. This in spite of the conventional wisdom insisting that forcing a new election in this way would lead to the guilty party’s certain destruction at the hands of an infuriated electorate. Of course, the obvious answer to the conventionally wise is that since nobody has ever done such a thing, nobody can know for certain how the electorate will react. It is surely possible that a junior coalition partner, by taking such a firm stand on principle, might inspire the admiration of a sufficiently large chunk of the electorate to secure its return to the House of Representatives, quite possibly with more MPs than it had before, thus testing the wisdom of conventions invented by journalists. As Luxon and his team of advisers and negotiators prepare for the release of the official count on 3 November, they cannot afford to indulge even the slightest notion that 38% confers veto powers on the National Party. Act and NZ First have every right to expect, and will demand, clear evidence that at least some of their key policies are to be included in the final coalition agreement. National will leave out Act’s referendum on Te Tiriti o Waitangi and NZ First’s Royal Commission of Inquiry into the Labour-led government’s handling of the covid-19 pandemic

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National will leave out Act’s referendum on Te Tiriti o Waitangi and NZ First’s Royal Commission of Inquiry into the Labour-led government’s handling of the covid-19 pandemic at its peril

Continued from page 10 (or something closely resembling them) at its peril. At a bare minimum, more than 347,000 New Zealanders voted for National’s coalition partners; ignoring them would not be wise.

New sheriff in town The most important consideration for all three participants in the coalition negotiations to bear in mind is that the change most New Zealanders most want to see is a decisive change in the conduct of the political class, the public service and the news media. The behaviour of all three over the course of the past six years has contributed to a growing sense of public uncertainty, even alarm, concerning their values and beliefs, and to what degree the institutions of the New Zealand state are any longer able – or willing – to challenge them. It was precisely this uncertainty and alarm that lent such urgency to the clear majority of New Zealanders who rejected the prospect of another three years of Labour, the Greens and Te Pāti Māori. Luxon needs to signal that he has heard them and that he most emphatically does not share the “progressive” values and beliefs of left-leaning politicians, bureaucrats and journalists. More importantly, he needs to let those same left-leaning politicians, bureaucrats and journalists know that there is a new sheriff in town. It is a matter of some concern that the prime ministerelect failed miserably to recognise an ideal opportunity to demonstrate just how decisively the balance of socio-cultural power has shifted. When the Auckland War Memorial Museum, emulating the British Houses of Parliament, the Eiffel Tower

and the Brandenburg Gate, caused itself to be lit up in the colours of the Israeli flag, the enemies of Israel, after attempting to physically prevent the illumination, demanded an apology from the museum authorities. This was immediately and rather abjectly given. It was as if nothing in New Zealand had changed. That was the moment Luxon could have – and should have – seized. Without delay, he should have released a statement urging the museum authorities to reject the demand for an apology. Declaring his solidarity with the people of Israel (as the leaders of the USA, the UK, France and Germany have done) and condemning the horrific violence unleashed upon innocent civilians by Hamas on 7 October, Luxon should have described the blue and white illumination of the museum as a fitting acknowledgement of Israel’s grief. He should then have further announced his strong expectation that the museum would also be illuminating itself in the green, red, black and white of the Palestinian flag as a declaration of solidarity and empathy with the bombed and besieged civilians of Gaza. For those who had voted for his party and for the parties of the National-led coalition, a statement of this sort from Luxon would have signalled that the days of “progressive” vigilantism are over. That noisy minorities will no longer be permitted to dictate who should issue grovelling apologies to the country, and for what. That the setting of a nation’s moral tone is the prerogative of its elected leaders. That was the message Norman Kirk sent to his conservative followers 50 years ago. Christopher Luxon should, similarly, send a message that he, too, intends to lead a decent government. ■ Chris Trotter has more than 30 years’ experience as a political commentator. He is also the author of the Bowalley Rd blog ■

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EMPLOYMENT LAW/TIKANGA

Employment Court grapples with ‘first law of Aotearoa’ in name suppression test case Front of mind for the court will be reconciling its potential desire to set down in a guideline judgment general principles of suppression orders, with the fact that tikanga must not be applied too generally Reweti Kohere While grappling with whether to permanently keep secret the name of a non-Māori employee, the Employment Court has turned to tikanga, the “first law of Aotearoa”, for guidance in reassessing its approach to non-publication orders. Submissions on tikanga Māori and tikanga values and evidence from a tikanga pūkenga (expert) were heard recently before a full bench of the court in a test case brought by the plaintiff known only as “MW”, who claims publication of his name will destroy his reputation and jeopardise his future job prospects. MW, whose name has been temporarily suppressed, is challenging an Employment Relations Authority (ERA) determination declining to grant a permanent non-publication order following breaches of a mediated, confidential settlement agreement by his former employer, the owner of a suburban Auckland restaurant. In addition to ruling on the merits of his case, Chief Judge Christina Inglis and Judges Bruce Corkill, Joanna Holden and Merepaia King are considering whether to stick with and tweak the leading civil Supreme Court authority on suppression orders or forge an entirely new test that better reflects the specialist employment jurisdiction over which the court and the Employment Relations Authority preside. In coming to that decision, tikanga Māori and tikanga values may be significant for the Employment Court, which has already had an opportunity to ponder the Māori system of law. At the end of June, in GF v Comptroller of the New Zealand Customs Service, Chief Judge Inglis left open the door by saying tikanga values might well sit “entirely comfortably” with an area of law that centres on employment relationships based on mutual obligations of good faith and focuses on maintaining and restoring them where possible.

Non-Māori plaintiffs A plaintiff’s non-Māori background appears to be an easy 10

While a case-by-case approach was imperative, equally crucial is not applying tikanga in the same way common law precedent is applied in and of itself

hurdle when considering how tikanga might apply in the employment context. In the case of “GF”, the fact that the plaintiff isn’t Māori didn’t matter as Customs had failed to honour tikanga commitments the border control agency had expressly incorporated into its employment relationship agreements and other governing documents. Chief Judge Inglis said Customs couldn’t be right to argue the explicit tikanga commitments it had made for all staff were relevant only to Māori staff. In the case of MW, who also isn’t Māori, it was an intervening party – the Privacy Commissioner – who raised the relevance of tikanga. MW initially argued that tikanga wasn’t relevant to his challenge. Following submissions, however, he argued it could be relevant. Regardless, he would abide by the court’s decision. During the hearing, Judge King (Ngāti Māhanga/Ngāti Te Wehi – Tainui) asked how the court might consider non-Māori who have strong connections to other indigenous cultures and even tangata whenua who are alienated from their whakapapa. Representing Te Hunga Rōia Māori, another of the case’s 11 intervening parties, barrister Renika Siciliano (Waikato, Maniapoto) said the answer would depend on the context of the given case. “I acknowledge your point around the importance of whakapapa or familial ties and obligations in other cultures that may be similarly important. In my submission, the elements of whanaungatanga, which we say are relevant to the employment relationship, would equally be important there.”

‘Highly relevant’ Context was another crucial throughline in parties’ tikanga submissions. Lawyer Jack Wong, representing the Privacy Commissioner, said, “In tikanga, as in law, context is everything”, before warning of the danger in applying tikanga principles “as if they are rules that exclude regard to context”. Court-appointed pūkenga expert Māmari Stephens (Te Rarawa) said tikanga didn’t “float free of constraint or process”. Instead, they were “tethered” to legal practices and procedures. In MW’s case, his employment relationship had given rise to a dispute, which ended by way of a full and final settlement agreement. However, his former employer had breached the terms of the settlement, particularly the confidentiality and

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Oct 20, 2023 Issue 37

Continued from page 12 non-disparagement clauses, and MW had sought to keep his name secret – a necessary remedy, in his mind. Stephens, a reader and law lecturer at Victoria University, said whanaungatanga, broadly understood to refer to relationships between people that are usually, but not necessarily, grounded in whakapapa, could be “highly relevant” to the case. “Mutual obligation by way of good faith requirements certainly resonates with the legal norm of whanaungatanga, and is manifest in practices and requirements that demonstrate good faith and uphold the continuation of that key relationship.” Employees or employers who ceased acting in good faith would “imperil” their employment relationships, and either repair or termination would be needed. Helping to drive reciprocity in relationships was mana, in which each person or place has an obligation and onus to the other to acknowledge, nurture and maintain their relationship. In the employment context, “each party is bound to uphold the mana of the other in the discharge of the obligations of good faith and the like”, Stephens said. Vital to regulating relationships was utu, which could enhance or diminish mana and consequently strengthen or weaken the standing and cohesiveness of groups of people. In the employment context, utu was most noticeable in an employer’s payment of a wage or salary in return for an employee’s work. Stephens said where an employment relationship has broken down, utu would require the hara (or the wrong, omission or deliberate failure that gave rise to a dispute) to be addressed. “Without a return or an answer to that wrong, an imbalance remains, one that creates dysfunction and disease.”

Tied to something Front of mind for the court will be reconciling its potential desire to set down in a guideline judgment general principles of suppression orders, with the fact that tikanga must not be applied too generally. Asked how the court might resolve this tension, Stephens said there wasn’t an instant answer. A guideline might spell out, for example, the tikangabased value of whakamā – where persons or groups perceive they have less mana than others or when they feel dishonoured in the eyes of others – will be relevant to non-publication orders. However, the guideline would prove meaningless unless it was connected to the event or action that resulted in whakamā and, subsequently, the response required to address it. Not all instances of whakamā must be wiped away, Stephens said, and in some cases its presence will be necessary to resolve the dispute. “I keep coming back to this idea [that] the value has to be tied in some way to what is proportionate, what is appropriate, what is necessary in that particular setting.” “It’s pretty predictable what the values might be or the legal norms, as I referred to them in my pūkenga report; which ones will be engaged. It’s not predictable necessarily what actions or reactions or responses are going to be required to uphold or fulfil the requirements of those particular principles,” she said. Siciliano added that tikanga, “the first law of Aotearoa”, was about doing what was right in a particular circumstance. While a case-by-case approach was imperative, equally crucial was not applying tikanga in the same way common law precedent is applied in and of itself. “The aim of bringing tikanga into the common law of this country would be to enrich the law by incorporating tikanga as and when appropriate…The legislative framework not only provides space for tikanga, but creates very natural synergies,” she said. The court reserved its decision. ■

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JUDICIARY

Justice Paul Davison’s final sitting: ‘The most demanding, fulfilling chapter in my life’ Reweti Kohere The historical courtroom one at the Auckland High Court has housed many of Justice Paul Davison’s most significant memories. Six decades ago, the 11-year-old watched his father, Sir Ron Davison, take Silk. Seeing for the first time a full bench of scarlet-robed judges in their full-bottom wigs, Davison remembers the drama and the atmosphere of the courtroom made a lasting impression on him. Later, while studying law at Auckland University, Davison would slip away from campus to watch the leading counsel of the day conduct their cases in courtroom one, the same courtroom where he would later be admitted as a lawyer; the same courtroom in which he would run his first criminal trial, the same courtroom where his father, in 1978, would be sworn in as New Zealand’s 10th chief justice. Nearly 40 years later, courtroom one would hold Davison’s swearing-in ceremony as a judge of the High Court; the same courtroom where he would sit for the very last time.

In full flight Speaking at Davison’s valedictory sitting on behalf of the Crown, former Auckland Crown prosecutor Brian Dickey thanked the judge for carrying out his judicial duties “fearlessly and with great respect to the rule of law”. Before becoming a judge, Davison’s career as a barrister had been one of the most extraordinary, Dickey said. “I don’t know or cannot think of anyone 12

Paul Davison KC

cleared Collins and the flight crew of blame. Instead, the airline had altered its flight plan without telling the crew and then, as the judge controversially opined, covered its tracks “with an orchestrated litany of lies”. As a courtroom adversary for more than 20 years, Dickey had observed Davison in “full flight”, including his closing statements, at times so persuasive that he had nearly convinced Dickey at times. “To hold [the jury’s] attention and to speak in that melodic and rhythmic cadence that you have…to witness that on a number of occasions, it was a privilege to do,” Dickey said.

‘Sense of the ridiculous’ who has appeared at the very highest level in the biggest criminal cases for both the Crown and for the defence, some of which stick in the public consciousness as part of our social history.” Cases such as the murder trial of Scott Watson, after the disappearance of Ben Smart and Olivia Hope in the Marlborough Sounds in the early hours of New Year’s Day in 1998; the 1989 trial of David Wayne Tamihere for the murders of Swedish tourists Urban Höglin and Heidi Paakkonen; and the trial of dominatrix Renee Chignell, who was eventually acquitted for the bondage-and-discipline death of English cricket umpire Peter Plumley-Walker. Davison also served as counsel for the estate of Captain Jim Collins during the Royal Commission of Inquiry into the Erebus disaster. Collins, who flew Air New Zealand flight 901 on 28 November 1979, was initially blamed for causing the accident through pilot error. However, Justice Peter Mahon’s inquiry report

Representing the New Zealand Law Society, former president Chris Moore said there was “more than a murmur of approval” across the profession when Davison was appointed to the bench. “If there was any sense of surprise, it was only that it had taken so long for the powers-that-be to finally sway you that this was a good move. It has certainly proved to be just that.” Moving seamlessly between prosecuting and defending clients, Davison was many barristers’ cocounsel of choice: he was “humble and self-effacing”, he knew his cases inside-out and left defendants and their witnesses with “nowhere to hide” during crossexamination. “Judges and juries loved you,” Moore said. Judicial service was in Davison’s DNA. How many judges must contend with “the patrician, slightly

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Photo: Fairfax Media / Contributor / Getty Images

How many judges must contend with ‘the patrician, slightly baleful downward gaze’ of their late father when sitting in court?

Oct 20, 2023 Issue 37

Continued from page 14 baleful downward gaze” of their late father when sitting in court? Moore asked. Good judges were empathetic, kind and balanced and, where necessary, firm and direct. Davison showed “all those qualities in abundance” early in his judicial career without losing his sense of humour, he said. “You have an infectious and delicious sense of the ridiculous.”

The rockstar Sangro Chambers barrister William Akel, speaking “as a very dear old friend”, shared his insights into what might have influenced Davison throughout his career. The pair became friends at law school in the 1970s. “Even then you had a natural charm, warmth, charisma – there was something sophisticated about you,” Akel said. While there was little doubt that Davison was born to be a lawyer, he could’ve been a star at the Pacific Music Awards, given how “beautifully you played the guitar and your incredible singing voice”, Akel remembered. “I can’t resist saying that as you became the rockstar of our generation.” But above all else, two judges would’ve had an “immeasurable” influence on Davison’s approach as a lawyer and as a judge. “The first was your father, Sir Ronald Davison QC, referred to by us as ‘RKD’…Like your father, you’ve always had that common touch about you. You appreciate the resilience and character of the average New Zealander,” Akel said. The second was Justice Peter Mahon, whose portrait Davison displayed prominently in his chambers, “such was your close friendship with him after his [Erebus inquiry] report was delivered”. Akel shared what the late broadcaster Sir Paul Holmes wrote about Davison, in his book Daughters of Erebus: “‘Throughout the royal commission, all through the transcripts, you can see in his interrogation and his

You have an infectious and delicious sense of the ridiculous

cross-examination how patiently and lethally Davison stalks his prey’.” “Next quote: ‘The brilliant, carefully researched, and tactically savvy young barrister’. Next quote: ‘Maria Collins [Captain Collins’ widow] knew nothing about barristers, but she was starting to realise that Paul Davison was immensely capable. He worked hard, he was sharp and his skills as an interrogator were strongly backed by research and comprehension’,” Akel said. “And finally: ‘In the final submissions, Paul Davison delivered a moving oration that burned with the anger of a young man who believed in justice.’”

Closing the circle Sitting before family, friends and members of the profession, and flanked by his judicial colleagues, Davison started his address with a mihi – the same one he gave when he was sworn onto the bench in 2015. “Despite so much that has happened since then, it’s remarkable just how quickly those years have passed. Today, I find myself at the end of what, for me, has been the most demanding but nevertheless fulfilling chapter in my life in the law,” he said. A career in the law might have been the “natural consequence” of a childhood exposed to the legal lives of his father and his contemporaries, Davison said. “While in hindsight that may seem obvious, growing up I never thought I would one day become a barrister and Queen’s Counsel, let alone a judge. Inevitably I was influenced by my family environment and by the

attitudes and principles of my parents and family.” Davison spoke about his grandfather, Joseph Davison, whose family had emigrated from Lincolnshire in the east of England and settled in the Ōtaki/Levin area. Sharing diary entries of his grandfather’s service in the First World War, the judge recited one entry made in late December 1917: Joseph, while recovering in a hospital in England, shared a poem the American Ralph Waldo Emerson had crafted. “This is what he said: ‘Not gold but only men can make a nation great and strong’ – this is a 25-year-old Taranaki boy – ‘Men who for truth and honesty stand fast and suffer long. Brave men who fight while others sleep, who dare while others fly. They build a nation’s pillars deep, and raise them to the sky’.” When Davison was working as a barrister, Sir Ron asked him several times whether he was interested in becoming a judge. “I now realise he was quietly encouraging me and hoping that I would take on a judicial role and make a contribution to our community as he had done as a judge, and indeed as Joseph had also done by his war service and to build a nation’s pillars.” Davison changed his mind after his father died in July 2015, realising it was time he stepped up. He was sworn in six months later, “under the familiar and somewhat detached – Chris, you said ‘baleful’, I wouldn’t have used that word. It crossed my mind – expression depicted in my father’s portrait,” he said to chuckles from the court. “An expression by which he appears to be asking me either ‘What’s taken you so long?’ or perhaps, ‘I thought you said you weren’t going to do this?’” The courtroom had seen so much of the retiring judge’s life, from when he was a boy and a law student, to when he was a lawyer, a Queen’s Counsel, and then a judge. “So it’s entirely fitting that the circle is closed and here, where it all started, is where it comes to an end,” Davison said. “Mr Registrar, I shall retire. Will you please adjourn?” ■

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Workplace Investigator Margaret Robins

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