October 2015 Māori Law Review

Mana Wāhine – the importance of women in the legal profession – Dame Lowell Goddard

Hui-a-Tau Conference 2015 - Te Hunga Roia Māori o Aotearoa

Hon Dame Lowell Goddard

4 September 2015

Te Hunga Roia Māori o Aotearoa (the Māori Law Society) held its annual conference at Waitangi in September 2015. The conference provided an opportunity for lawyers, law students and members of the judiciary to discuss a wide range of legal issues relevant to Māori.  The Māori Law Review is proud to support Te Hunga Roia Māori and to publish a selection of the presentations from the conference. The following paper is by Dame Lowell Goddard.

Mana Wāhine – the importance of women in the legal profession

Hon Dame Lowell Goddard

E tū ki te kei o te waka – Stand at the stern of the canoe

E te iwi kainga o tēnei rohe, o Waitangi, tēnā koutou, tēnā koutou.

Tēnā hoki tātau te hunga roia Māori

Kei te mihi, kei te tangi hoki ki o tātau mate.

No reira koutou haere.

Mahue mai i a mātau o koutou roimata ki muri nei.

Kia ora ano tātau katoa,

The whakataukī, from which the title of this conference is taken, is quite wonderful and very inspiring, as was its creator, Dr  Mahuika, of whom I shall say more.

Standing at the stern of the canoe conveys an immediate impression of the concepts of strength, leadership and courage.  The title of this session, Mana Wāhine – the importance of women in the legal profession – carries its own inspiring image of a modern day Māori Portia, standing strong, leading from the front, navigating the path ahead – a veritable legal warrior.  If we can imagine her with scales of justice in one hand and the sword of justice in the other, she becomes immediately a perfect symbol of justice, equality and progress.

When I asked Heather Jamieson what I might usefully talk to you about today, she was kind enough to suggest that it would be interesting to hear about some of my personal experiences and roles as a Māori wahine practising law and sitting on the Bench, and why I think women in general play an important role in the profession.  She referred to the fact that our profession was, and still is, largely dominated by Pākehā males and that therefore glass ceilings still exist.

The obvious starting point in talking to you about the importance of Māori women in the legal profession and, in doing so, sharing with you some of my personal experiences and my views as to why women play an important role in the legal profession, is a consideration of the law itself, its all-encompassing and underpinning influence and its fundamental importance to a fair and just society.

Before embarking on that, however, I should share with you that I did not in fact have the advantage of growing up with an intimate understanding of my Māori heritage.  I did not have the advantage of being immersed in it, although I always had a very strong sense of it. I felt its importance in my life, its influence and I identified with it.  My bloodlines of Ngāti Kahungunu, Tūhoe and Aitanga a Māhaki came from my father, who was a pilot in the Air Force but who was sadly killed in a plane crash at the age of 28, shortly after my third birthday.  My growing up years were thereafter spent in the home of my maternal grandparents, who were Pākehā, and I had only intermittent contact with my father’s parents and his family.  That situation has happily been remedied in my adult life.  And I am very pleased to be able to acknowledge, in particular, my cousin, Rachel Mullins, a young mana wahine practising law, who I have got to know and love in recent years.  I also want to acknowledge the presence of Te Rau Kupenga, a very special man of whom I shall speak further.  The influence of Ngāti Porou in my life and on my judicial career has been a strong and defining one.

Returning to the law and its fundamental importance, it is trite that the laws of any society embody its basic tenets and the minimum standards of conduct acceptable to a community.  Those laws are therefore the terms of the social contract by which the members of that community have agreed to abide.  The law is thus the civilising influence.  It provides the framework in which people can live together, in which their interests can be balanced, and their conflicts peaceably resolved.  A fair and just society, in which men and women undertake equal responsibility for ensuring the rule of law and ensuring that justice and equality are available to all, must be the ultimate aspiration of any civilised society.

Turning to my own small journey along the pathways of the law, it is a self-evident truth that there is always an element of luck in everything; and while it is to an extent correct that we all make our own luck, there will inevitably be advantages but also disadvantages that we have to overcome.  It goes without saying, however, that taking the chances and making the most of the opportunities that do come our way is critical.

I did not set out to be a lawyer or dream that I would one day become a judge.  I never had any grand plan or vision of trail-blazing in those heady days of militant feminism in the 1970s, when I was embarking upon my practice.  I qualified in 1975 and my career since has only ever been in the law, and thus within a relatively narrow frame.  However, I have been blessed with the opportunity to undertake a variety of roles in the law during that time and thus there has never been a dull moment.  I can also say that while my early career was not the result of any particular foresight or planning, nor driven by any burning ambitions, embarking on a career in the law was the result of a degree of inspiration during my impressionable years.  Much of that inspiration came from a school friend, the present Chief Justice, a woman, who even as a girl, always enjoyed a clear sense of direction and never lowered her sights.  She remains that sort of person today, always capable of inspiring others, encouraging them to think beyond the square and to extend themselves.  I am sure that the emergence and progress of women in the law in New Zealand in modern times owes much to the Chief Justice’s influence.

At the time I was stepping tentatively into the very back seat of the waka, in the mid-1970s, opportunities to develop a career in commercial litigation or to become a principal in a law firm or a leader at the Bar seemed non-existent for women.  99.9 per cent of principals in the law firms were men and disinclined to instruct a woman to argue their clients’ cases.  So I hung out my shingle early as a barrister in 1977 and got into court, which is where I wanted to be, doing the hard grind of duty solicitor work and legal aid assignments.  The predominant portion of my work was criminal and I soon found myself in the then Supreme Court defending gang members.  At one time I was defending the Black Power, the Mongrel Mob and the Head Hunters, although not all in the same trial as you will understand.  Overall, I was to spend upwards of 12 or so years doing such work and it gave me some great experiences.  It also gave me real insight into humanity at all levels and I think a perspective on society and a sense of what is, and is not, important in this transitory life of ours.

In 1988 I received the offer of a truly defining career opportunity.  That was as senior counsel assisting Judge Silvia Cartwright in her role as the newly established Commission of Inquiry into Cervical Cancer Treatment at National Women’s Hospital.  Silvia was at that stage a Family Court Judge.  My exposure to her principled approach to work, and to life in general, at that pivotal stage of my career, was both beneficial and an enjoyable experience.  The Inquiry did not turn out to be the “short, sharp” exercise that it was initially announced to be: it took 18 months and was at many times a gruelling and emotional ordeal for all concerned, given the horrendous nature of the subject matter and the appalling tragedies that had occurred and were still in the process of occurring.  But we soldiered on through and the result was (I hope) a good outcome for women’s health for the future, and for informed consent for patients.  Certainly its personal legacy was a lasting friendship.

After the inquiry was over Silvia was appointed Chief District Court Judge and became Dame Silvia Cartwright; and I took silk along with the Chief Justice.  That was in 1988.  It seems a long time ago now and we were the first two women to take silk.  Many have since.

My career path then took an unexpected and very exciting turn.  While I was in Wellington, attending the swearing-in of the Solicitor-General, Paul Neazor, as a Judge of the High Court, the newly appointed Solicitor-General, John McGrath, approached me in the robing room and asked if I would be interested in joining him at the Crown Law Office, to lead the criminal work of that office and assist him in building the office up into a more vibrant and cutting-edge legal practice.

I said yes and then spent a very happy six years at the Crown Law Office, leading the criminal and Crown Solicitor’s team and appearing in Court on an almost daily basis.  Of course I was now a prosecutor, as opposed to defence counsel, and I held the Crown Solicitor warrants for Nelson and Blenheim, so operated as a flying prosecutor to those districts.  I built up a cohesive and multi-talented team, comprising lawyers with both Crown and defence experience, as well as some serious academics.  My years at Crown Law were very busy and very rewarding, straddling the late 80s and early 1990s.

Then in 1995, the then Attorney-General asked if I would accept appointment to the High Court Bench.  I did so and thus began a new change of career direction and a new chapter in my life in the law.

The judicial role carries many responsibilities but in many senses it is infinitely more comfortable than the role of counsel, because it does not carry the stress and burden of being an advocate in the cause and thus the Judge is able to be objective about the issues at stake.  The Judge has no vested interest in the outcome of the issues and, in a sense, simply lets the case come to him or her and endeavours to decide it in an even-handed way, with no barrow to push and no desired result.  The Judges’ sole responsibility is to impart justice without fear or favour as between the parties, be they private citizens or the State.  That is why justice is always depicted blindfolded.  Interestingly, justice is also always depicted as a woman.

While in my relatively early years as a Judge, I encountered some influences that were to have a profound effect on me and on other Judges.  The Institute of Judicial Studies was established and the first of a number of weekend marae experiences was organised.  I and my long-term friends, Sian Elias and Jane Lovell-Smith, were amongst the group to attend the first of those weekends at Hiruhārama Marae in Ruatoria, along with Sir Rodney Gallen, who was our judicial kaumatua, and a number of other judges from all Benches, including Jan Doogue and Sir Kenneth Keith and a surprise ring-in, an English Lord Justice of Appeal, Sir Stephen Sedley, who we came to know well over the course of that weekend and who has remained a good friend of New Zealand ever since.

Stephen Sedley was simply amazing.  He had no sooner stepped off his flight from London, as a visiting Fellow of Victoria University, than he was whisked onto a flying pencil and cartwheeled across a bumpy winter sky to Gisborne.  None of us will ever forget him playing the guitar in the wharekai in the evenings and offering an apology, simply and graciously, for all that had been wrong with colonisation.

A new experience for many of us that weekend was sleeping marae-style in the wharenui, which we found was a good way of breaking down barriers and imparting a feeling of community.  Stephen Sedley, according to ranking, slept on the right-hand side of Rodney Gallen, one down from the door and next to Ken Keith.

Later on the Saturday night, or rather in the small hours of Sunday morning, a contingent of judges got up and sneaked off to the local pub, which in those days had the only satellite facility on the whole of the East Coast, to watch the All Blacks play South Africa in South Africa.  It was well outside licensing hours for the pub, but a blind eye was turned to this judicial escapade.  As I recall it, the now Chief Justice could not find her clothes in the dark and so went to the pub in her pyjamas to watch the match.

Of course, by the end of that incredible weekend, we were all bonded for life and completely released from the fear of living in a close communal way.  And in ceasing to be so concerned and preoccupied with our own selves, we had along the way learned to listen better to others – not a bad thing for judges.

For me, the main legacy out of that wonderful weekend at Hiruhārama was getting to know Dr Apirana Mahuika, and the people of Ngāti Porou.

Another incredibly challenging opportunity that came my way was the chance to head the Police Complaints Authority in 2007.  At that time, the organisation was an Authority sole but, subsequently, with the passage of the Crown Entities Act, it became an Independent Crown Entity with a Chair and Board.  Thus my role as Authority sole became that of Chair.

The short history of the Police Complaints Authority (or Independent Police Conduct Authority as it now is) is interesting and is of some significance in the cultural development of New Zealand.

The impetus for its establishment was a watershed event in 1981, the same year, coincidentally, as the Brixton riots which occurred in London, England, and which led to the establishment of the Police Complaints Authority in England, on which the PCA in New Zealand was later modelled.

Over a period of 56 days in June, July and August 1981, New Zealanders, from across the social spectrum, became sharply divided over a matter of principle.  What followed was the largest civil disturbance ever experienced in our small and hitherto seemingly harmonious country.  More than 150,000 people took part in over 200, often violent, demonstrations in 28 centres.  Many protesters and some Police officers were injured during the demonstrations and a number of complaints about Police brutality and violence followed, but without satisfactory resolution.

To many, it was inconceivable that the cause of this civil unrest was the visit to New Zealand of the Springboks for a rugby tour, as rugby has been deeply embedded in our cultural psyche since early colonisation, not only as New Zealand’s number one sport and verging on a national religion, but as a vital component of our national identity.

But our country was also deeply committed in its stance against the system of apartheid that prevailed in South Africa at that time.

Some commentators described those catalytic events in 1981 as the moment when New Zealand lost its innocence as a country, and as a watershed in its view of itself as a country and a people.

And it was in the wake of that cathartic coming of age, and after a lengthy gestation period, that the Police Complaints Authority was born, in 1989, as a civilian organisation to deal independently with complaints about Police conduct and practices.

In 2007, I wrote in the Authority’s first Statement of Intent that its vision was for New Zealand to have a “trusted and trustworthy Police” and that its mission was “to promote public confidence in the Police through the investigation of the appropriateness of Police actions, procedures and policies and the making of recommendations.”  That mission statement became refined into a statement whereby the Authority pledged to “ensure by vigilant, independent and robust scrutiny and reporting, public confidence in the New Zealand Police as a trustworthy and accountable law enforcement agency of the highest integrity and efficacy.”

More importantly, however, through the privilege of my connections with Ngāti Porou, forged in those earlier years at Hiruhārama Marae, the Authority was accorded a more significant Mission Statement by Dr Mahuika, who took the time to read my Statement of Intent and to talk through with me what I wanted to achieve in my work at the Authority.  The whakataukī that he created for my work at the Authority embodied the spirit of what I was trying to achieve in my work there, and also embodies the spirit of the legal profession that we have all chosen to devote our working lives to.  It is:

Whaia te pono, kia puawai ko te tika – Seek out the truth, that justice may prevail

That proverb, together with the central principles of the Judicial Oath “to do justice to all manner of people, without fear or favour, affection or ill-will”, I have taken with me into my new role as Chair of the Independent Inquiry into Child Sexual Abuse in the United Kingdom.

Before departing from the topic of my five year stint at the Independent Police Conduct Authority, I want to record that one of the most important pieces of work that I have ever undertaken was the IPCA’s independent investigation into the Police raids on the community in the Ruatoki Valley in Te Urewera.  I retained Te Rau Kupenga as cultural adviser to the Authority to help me with this.  I made three or four visits to the Valley to meet with the people who lived there and who had been subjected to the raids, and Te Rau accompanied me on the first of those visits.  Annette Sykes was there and she and her office were also of great assistance.

During my work on that investigation, I also took counsel from, and received a great deal of guidance from, Sir Rodney Gallen, who had a great affection for, and understanding of, the people of Tūhoe and their history.  I also consulted with the late Judith Binney on the history of Tūhoe.  It was a matter of great regret for me that the report on the raids that I had drafted during my tenure at the Authority was not able to be issued on my watch.  However, I trust that the essential findings in my draft report and my recommendations to the Commissioner of Police were ultimately conveyed intact and have been implemented.  I was so very pleased that the Commissioner of Police took it upon himself to personally apologise to the people of the Ruatoki Valley and he and I had a telephone conversation about that afterwards.

I will now tell you briefly about another opportunity that came my way and which had its genesis during my term of office at the IPCA.  In 2007, New Zealand ratified the Optional Protocol to the Convention Against Torture.  In New Zealand, responsibility for monitoring Police conditions of detention became part of the work of the Independent Police Conduct Authority.  On the back of carrying out that work, in 2010, the New Zealand Government nominated me for election to the international body, the Subcommittee for the Prevention of Torture, which operates out of Geneva.  That work has added an incredible dimension to my life and my career.  It has taken me on fieldwork missions to a number of countries to inspect conditions of detention and to teach preventive measures, notably to the Ukraine, Albania, Georgia, Argentina, Cambodia and the Maldives.  The work is difficult and must be approached carefully and sensitively, the first principle of preventive work being to do no harm by your actions.  An example of why this first principle is so important is the high level of risk around reprisals for prisoners who make disclosures about their situation.  I could talk at great length about this work and its importance and what I believe to be its potential for effectiveness, but time does not allow for that.

And now, after three years back on the Bench I have a new challenge, perhaps the biggest one of all, chairing the Independent Inquiry into Child Sexual Abuse in England.  That is a whole chapter in itself and one we have not got time to go into now but suffice to say that when I was approached to take on the role I had to think long and hard about whether I was prepared to do it.  But it was a challenge that in the end I couldn’t resist.  It is after all a chance to make a difference - I hope.

Let me now return to our theme, of mana wāhine - the importance of women in the legal profession - the importance of women standing at the stern of the canoe, being at the forefront of the legal profession, in all of its aspects, taking opportunities, accepting the challenges, and juggling all of the responsibilities that women, as the primary nurturers in society, uniquely have.

I believe our community does care deeply about the administration of justice.  That indeed is one of the unifying features of the Treaty, and before that the wisdom of Plato, and long before the Treaty the thoughts and feelings that went into the Magna Carta.  The due administration of justice, through legal process, was and remains the expectation of all New Zealanders, Māori, Pākehā and all of the citizens of Aotearoa, female and male.

Who we are is fundamentally important to what we bring to our respective roles and thus my descent from my tipuna of Kahungunu, Te Aitanga a Māhaki and Tūhoe, and the guidance and love I have received from the people of Ngāti Porou is important to me.  It is a part of who I am.  It helps to shape my perspective on the world and my sense of justice.  So, too, does the fact that I am a woman shape my perspective on the world and my sense of justice.  Men and women are different and those differences are to be celebrated.

The New Zealand legal profession and judiciary of the 21st century is beginning to reflect our diversity and New Zealand’s cultural maturity. The advent of women onto the Māori Land Court, the District Court, High Court, Court of Appeal, Supreme Court and taking the role of Chief Justice has served to “normalise” the judiciary. There are greater numbers of women amongst the ranks of senior counsel. However, the attainment of high office is not the accurate or only way to measure the success of women in the law. While the increasingly large numbers of women practising law in the ranks is a statistic in itself, there is a distorting effect in the perception those numbers give.  The situation has still not translated numerically into, for instance, senior partnerships in major law firms.  An obvious reason, but not justification for that, is that women have to make decisions about lifestyle and family.  These are powerful influences on the career paths of women in the law or in any field of endeavour.  And it is those very decisions, which women make, in the greater interests of society, that should and could be much better accommodated by the legal profession – and they must be if we are to achieve a truly balanced and representative legal fraternity.

The civilising balance that the equal involvement of men and women in society’s affairs brings, does render it perplexing that equality is still not the case in the law, and that even today the scales are tipped towards the male of the legal species.  We must keep working at finding the solution and we must constantly remind ourselves of the balancing perspective that women bring to justice and to the law.