December 2018 Māori Law Review

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

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

Elisabeth McDonald, Rhonda Powell, Māmari Stephens, Rosemary Hunter (editors)

Hart Publishing, Oxford and Portland, Oregon, 2017 (ISBN9781509909711)

Reviewed by Linda Te Aho, Associate Professor, Te Piringa Faculty of Law, Waikato University.

Discussion

Feminist Judgments of Aotearoa New Zealand is one of a number of global projects that demonstrate the influence of perspective on judging and how judgments might look if written from a feminist perspective. Making my way through the book reminded me of my former colleague, Ruth Busch, whose academic writing highlighted ways in which judicial attitudes trivialised and invisibilised domestic violence.  In “Was Mrs Masina really lost?”, Ruth challenged the message that a court gives about domestic violence when credit is given to a killer because he falls into the category of "sole surviving parent" when, in fact, he stands convicted of the manslaughter of the other (now dead) parent.[1]

This book challenges these sorts of messages by presenting 25 ‘reimagined judgments’ each with its own commentary. Divided into four parts, the introductory chapters in Part I set the premise for the book. Part II includes judgments and commentaries on Rights, Equality, and Relationality; Part III on Land and Natural Resources; and Part IV on Crime.

The feminist judgments take a purposive approach to statutory interpretation, emphasise an ethic of care, and tend to re-tell the facts, often using fictitious names to humanise victims and complainants to acknowledge the experience and effects of law and legal decisions on them as human beings.

An early example in the book is Brooker v Police [2007] NZSC 307. Mr Brooker had protested outside the home of a female police officer, Ms Croft, whom he believed had abused police powers in relation to him. The protest consisted of playing a guitar, singing, and displaying a placard. Mr Brooker was arrested for loitering with intent to intimidate, but the charge was later substituted in court with the lesser offence of behaving in a disorderly manner.   In balancing the right to peaceful protest against the right to privacy, one judge described the protest as a “serenade.”  The feminist judge, Janet McLean, described it as a “carefully planned and calculated act of personal revenge” against a woman at her most vulnerable.  The feminist judge agreed that the proceedings could not be reopened but “used obiter as a tool to expose the weakness of legal liberal discourse”.[2]

There are cases where a different outcome is reached.  In Lawson v Housing New Zealand [1997] 2 NZLR 474 Mrs Lawson had been unsuccessful in her challenge to the government’s policy of charging market rents for state housing.  The feminist judge, Natalie Baird, directed that the decision be reconsidered in light of the reasoning in her judgment. As the commentator explains, the feminist judge adopted a more “human-centred - and woman-centred - approach”  by giving prominence to the lived experience of Mrs Lawson and giving voice to the effect of the move to market rents on the family.[3]

In Director of Human Rights Proceedings v Goodrum [2002] NZHRRT 13 the majority of the Human Rights Review Tribunal accepted that while sex discrimination played a part in Ms A not getting a particular job, the discrimination was not “significant and operative” in the selection decision.  Tribunal member, Leah Whiu, dissented.  As noted by commentators, the published decision of the Tribunal not only omits the text of Ms Whiu’s dissenting opinion, but all reference to the fact that one was given.[4]  In her minority decision, the feminist judge, Seline Mize, exposes how decision makers often rely upon gendered assumptions about particular occupations. The commentators explain that “[e]mployment discrimination is not always blatant. It is often insidious and the result of unconscious bias.”[5]

An example from Part III is Squid Fishery Management Company Ltd v Minister of Fisheries CA 39/04. The commentator explains that according to one feminist approach, the subjugation of nature is seen as similar to the subjugation of women. Feminist judge, Nicola Wheen, adopts an eco-feminist approach in interpreting the Fisheries Act to place a greater emphasis on avoiding sea lion deaths rather than creating pressure to maximise fishing effort.

In Part IV the constructive and educative nature of this project is clearly seen in the feminist judgment in R v Taueki [2005] NZCA 174 where Frances Gourlay provides specific guidance for sentencing in domestic violence cases, including those cases that involve forms of violence other than physical violence. The commentaries and feminist judgments in R v Sturm [2004] 1 NZLR 570 and Vuletich v R [2010] NZCZ 102 expose judicial and counsel reliance on “rape mythology.”

An unique aspect of this project is the inclusion of “mana wahine” judgments.  Mana wahine is an approach that places Māori women at the centre.  An example is R v Te Tomo [2012] NZHC 71 where Valmaine Toki sets out culturally sensitive sentencing principles that take into account the complex challenges faced by a young Māori woman, respect for her mana, and belief in her potential. In the mana wahine judgment, Ms Te Tomo was sentenced to an 18-month community programme on a marae, rather than a custodial sentence. The judgment and the commentary highlight the serious issue of over-representation of Māori women in prison and promote the development of indigenous sentencing jurisprudence in New Zealand, looking to the principles of the United Nations Declaration on the Rights of Indigenous Peoples to strengthen domestic solutions.

Feminist Judgments of Aotearoa New Zealand challenges our thinking about law and judging in a mana enhancing way.  The book offers a vision for gender justice through a more human centred approach to judicial reasoning. It highlights the influence of perspective on judging and the need for increased judicial diversity in Aotearoa New Zealand. By reaching across a broad range of themes, the book offers insights that will be of immense value well beyond the judiciary and the legal profession, and has the potential to influence change in law and policy.

Notes

[1] Ruth Busch 'Was Mrs Masina Really “Lost”? An Analysis of New Zealand Judges’ Attitudes towards Domestic Violence' Otago Law Review (1993) Vol 8 No 1 17.

[2] Page 78.

[3] Page 107.

[4] Page 266.

[5] Page 270.

Author: Linda Te Aho

Linda Te Aho is of Ngāti Korokī Kahukura and Waikato-Tainui descent and is the Associate Dean Māori at Te Piringa Faculty of Law, University of Waikato.