Opening Address to University of Otago Law Faculty 150th Anniversary

Kia ora koutou

E ngā punga o te ture

E ngā kaitiaki o te ture

E ngā wahapu o te ture

Tēnā koutou katoa.

To those assembled here today

The anchors of the law

The stewards of the law

The exponents of the law

I greet you all.

Professor Shelley Griffiths, Dean of Law, I am confident I speak for us all when I say how pleased we are to be here to celebrate the 150th anniversary of the Law Faculty of the University of Otago.

Many will recall the excitement of our first days here as, with trepidation, we engaged in the learning of the law. Lecturers with brains the size of Brazil dazzled us with their knowledge, sometimes sporting cool leather jackets, but perhaps more often showing greater flair in words than jeans.

Here we are years later to reflect on the important role the Faculty has played in analysing, teaching, and shaping the law.

The institution as the sum of its people

We look forward to listening to the thoughts of colleagues who have contributed much to the development and application of the law.

And we cherish the chance to catch up with former classmates, professors and lecturers.

Some now members of the judiciary, academics, barristers, solicitors, public servants, diplomats, politicians. In civil law, criminal, family, employment, Treaty, environment, human rights, international, or tax. Others who chose to devote their learnings and skills to the arts or other fields of endeavour – in business, for NGOs, sports or other causes.

We all carry with us what we learned here. This institution – which is the sum of its people over the last 150 years – has helped shape us, and through us the countries we live in.

Our predecessors include many luminaries. I’ll list a few, roughly in order of their time here. You’ll see how society and the legal profession has changed.

Sir Robert Stout, in the late 1890s twice the Premier of New Zealand, a land reformer, and later Chief Justice.

Ethel Benjamin, the first woman ever to qualify as a lawyer in Australasia in 1897 and that year the first woman to appear as counsel in a New Zealand (or British Empire) court. Upon moving to the UK she managed a bank, but could not practice fully as a lawyer there until the UK Sex Discrimination (Removal) Act was passed in 1919.

Sir John Salmond, Solicitor General, judge of the then Supreme Court, and author of The Law of Torts, as well as books on Jurisprudence and the Law of Contract.

Major General Sir Harold Barrowclough, soldier, Chief Justice, founding judge of the New Zealand Court of Appeal, and member of the Judicial Committee of the Privy Council.

I jump forward many decades to Dame Sylvia Cartwright, who in 1989 was appointed to the District Court, became the first female Chief District Court judge, then High Court judge, presided over the inquiry into the treatment of cervical cancer at Auckland’s National Women’s Hospital, was made Governor-General, and then served as an international judge on the Cambodian War Crimes Tribunal. What contributions!

Judith Mayhew Jonas, elected member of the City of London and advisor to Ken Livingston.

Sir Bruce Robertson, Dunedin lawyer, lecturer in Evidence, High Court & Court of Appeal judge and Chair of the Law Commission.

A’e’au Epati, the first Pacific Islander to be appointed to the bench of a New Zealand Court, in 2002.

Sir Ron Young, long serving District then High Court judge and now Chair of the Parole Board.

Margaret Bedggood (formerly Mulgan), lecturer here, then Chief Human Rights Commissioner, then Dean of the Waikato Law School.

Wilson Isaac, currently Chief Māori Land Court judge.

Current Court of Appeal judges French, Miller and Katz.

And in the arts and creative sectors, Greg McGee, playwright; Jonathan Lemalu, opera singer; and Sir Ian Taylor, founder of Animation Research and Taylor Made Productions.

Many, many others. Too numerous to name or even count. Leading counsel in leading cases. Hard-working people serving the needs of their communities as they buy and sell homes, or deal with the challenges of life – be they interactions with the coercive powers of the state, or relationship breakdowns, or serving as volunteers in community organisations.

You may have noticed I have not yet listed many of our esteemed academics.

They are authors of many learned texts, like Professor PBA Sim, Dean when I started my studies, and co-author of Hinde McMorland & Sim, the leading land law text.

The wide array of books by other current and former faculty members are on display. I won’t pick favourites, but would note the combined years of endeavour behind those important contributions total not just decades but many centuries of work.

Challenges and opportunities

Every generation deals with challenges of the day.

I was here in the late 70s and early 80s. Rt Hon R. D. Muldoon was Prime Minister. Think Big, the high dam at Clyde, the proposed smelter and the Save Aramoana campaign, the 1981 Springbok tour, abortion and homosexual law reform were all contentious.

Fitzgerald v Muldoon was not long decided. CREEDNZ on judicial review was hot off the Court of Appeal press.

A nationwide wage, price and rent freeze was imposed not by Parliament but by statutory regulation promulgated under the Economic Stabilisation Act.

Flats were cold, beds were warm, the Royal and Ancient Anti-Scurvy League vegetable truck served as a healthy counter point to the Captain Cook. The Dunedin Sound was becoming louder. The Enemy, the Clean, the Chills, the Verlaines, Straightjacket Fits, Look Blue Go Purple, Sneaky Feelings and the Netherworld Dancing Toys. Some law students there too.

From my perspective, it was a great time to be here.

I have often said there is no part of my learning here that has not been relevant to my life.

The history of the law. After 20 years as a politician I know more about the 1688 Bill of Rights and the boundary between Parliament and the Courts than I had expected to be relevant, and perhaps I have become an expert in trial by battle. I did not envisage that controversies about entrenchment – single or double ­– would feature.

Legal questions and societal issues

To this day I value the most important lesson I learnt here – that at the heart of most legal questions lie fascinating societal issues.

The difficult balance between individual and community rights, civil liberties, economic theory including competition, monopolies, the importance of but limits to property rights, investment certainty, political theory and democracy, risk allocation, the intersection of private and public interests, environmental externalities like to climate and water, the tragedy of the commons, identity and the interests of the majority and minorities, the often competing interests of capital and labour, and inherited privilege or disadvantage.

Understanding these often competing interests helps make sense of the law and how it should be applied or developed.

I recall being initially confounded by the elliptical lectures of Professor Richard Sutton, who forced us to think. I came to understand the importance of the rule against perpetuities – a life in being plus 21 years – and the equitable principles relating to estoppel, undue influence and tracing.

In tax, which I studied in both commerce and law, it was under Ian Williams where I came to understand the difference between taxable income and economic income, and between taxes on labour income and capital income. I could not fathom the reason for some of the differences in the incidence of tax, until I learned this in large part is because tax outcomes arise from statutory rules divorced from real economics. Hence the growing gap between the very rich and the rest.

Having made torts comprehensible, Professor Smillie was the star of what was then administrative law. The class was large, and the law in a state of flux, as the legal system pushed back against the actions of the Muldoon government. It was compelling stuff.

In family law, Ian Muir, with that twinkle in his eye, taught us Death by Adoption.

I was in class when Nigel Jameson responded to criticisms from the OULSA that his jurisprudence lectures were opaque. He famously delivered the first part of his next lecture in fluent Russian, and then flashed a torch and rang a bell to highlight his important points. And another day he casually asked if it was someone in that class who released a greased piglet into the hall of his home opposite Olveston. Perhaps that mystery can finally be solved by a confession in the next few days.

Not everything was rosy. Women were just starting to come through as lecturers, but it was still harder for them to get ahead here as it was in private practice. Minorities also were not well represented.

Dunedin Community Law Centre

The transition from practising lawyers lecturing part-time to full-time academics had largely occurred. But as a consequence the professionals course was next to useless.

In response, students set about creating the Dunedin Community Law Centre. The Faculty saw this as criticism and was in the main opposed, though Geoff Hall, Ian Muir and a youngish Mark Henaghan were supportive.

A group led by John McManamy got student holiday jobs sponsored by another university department to give it a crack. Gail Macassey, Maggie Flynn, Kevin Pullar, Dave McNaughton and Susie Hanan were the other main drivers and I was a ring in.

John was from the USA and had a US book called something like “How to Run your own Publicity”. Having secured a generous donation from the Russel B Henderson Trust, we invited Professor Sim to an event, and asked him in the moment to accept the donation on our behalf. The Otago Daily Times photographer’s flash flashed. News was made, the Faculty came in behind, and a student-led community law centre was founded.

The rat-infested derelict building initially offered to us next to the Cook was thankfully demolished, and a cute little shopfront across the road on Great King Street secured for little or no rent.

At the beginning, the Otago District Law Society saw students providing free legal services to those in need as a low-quality threat to their monopoly. Some, like Mike Nidd, disagreed and helped from the start. Others featured, perhaps unfairly, in a file called “shit of the month”.

Sessions followed on interviewing technique, how to deal with upset clients, and how to write a letter. It was so popular that senior students had to ballot to be involved. The Dunedin Community Law Centre ran under the supervision of practicing Dunedin lawyers volunteering their time in the evenings. It has helped meet legal needs for decades since. I’m hoping to meet up again with others involved while here.

Teachers, researchers, and improving the law

I return to our legal teachers and researchers to whom we, your students, all owe debts of gratitude. We share a love of the law and at times frustration with it.

I acknowledge the work you have also done for the Law Foundation and the Law Commission to improve it. I thank those who are willing to participate in the media – explaining important legal issues to the public. Please do more of that. In this age of social media and conspiracy, the rule of law must be understood.

I note especially Jeremy Waldron, one of the world’s leading legal and political philosophers. Now a professor of New York University School of Law, following stints at Oxford and elsewhere, he is with us today.

Jeremy, I have quoted your 2006 Yale Law Journal article “The Core of the Case Against Judicial Review” in Parliament more than once, most recently as part of the debate on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act. I helped ease that through Parliament, unanimously, in 2022 after a lengthy Select Committee process which I chaired and after many years of careful prior development.

The amendment and related changes to standing orders requires Parliament and the Executive to respond to declarations by the senior courts which find primary legislation to be inconsistent with the New Zealand Bill of Rights Act 1990. Parliament remains sovereign and can respectfully disagree and leave the legislation unamended, or it can on reflection amend or repeal it. And a later Parliament can always change its mind.

So, I too am opposed to conferring on the Courts the constitutional power to overrule primary legislation. In my respectful opinion, your arguments trump Sir Geoffrey Palmer’s (a remarkable protector of civil liberties though he undoubtedly is).

The inability of the USA system, in the name of free speech, to limit donations or election spending by corporates (which can’t vote) and others is a case in point. As is the recent rewrite of abortion laws by the US Supreme Court. And the inability to effectively limit the right to bear arms, including semi-automatics, including in some State legislatures, which I find bizarre. I look forward to your session.

Conclusion

That said, I look forward equally to our social occasions.

A special thank you to Professor John Dawson and others who have put this event together.  Well done.

Tēnā koutou, tēnā koutou, tēnā koutou katoa.