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Preface

This important work challenges all New Zealanders, especially those with responsibility for the operation and reform of our current law and institutions, to re-examine the values and priorities which have become part of us during a lifetime of working within them.

It was prepared by Joanne Morris in her capacity as a Law Commissioner from 1994 to March 1999 as part of the response to terms of reference Women’s Access to Justice: He Putanga Mö Ngä Wähine ki te Tika approved by the Minister of Justice in September 1995. Its topic is two related issues, each of fundamental importance to New Zealanders. One is whether New Zealand women are treated properly by the legal system. That raises in turn a second – whether the New Zealand citizen has such access to legal services and advice as to be able to secure access to justice.

Both are, or should be axiomatic. The study however provides disturbing grounds for concern as to each and is essential reading for all to whom the well being of each of our citizens is important.

The study has already had considerable effect in bringing the issues to attention and influencing change. The Commission’s report NZLC 53 Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei, another part of the response to the reference which was commenced by Commissioner Morris and concluded by Commissioner Henare, records major advances in understanding and practices within the justice sector as they affect Mäori. The present study records developments during the term of the project, including the preparation and release of Miscellaneous Papers on a variety of topics and the successful Gender Equity seminar attended by the judiciary in 1997 to which the study contributed.

But the lesson of the present study is that there remains a long way to go.

The present study focuses on the problems that women have in simply getting access to legal services, and so getting any access at all to the justice system and why the system does not accommodate them as it should. It suggests some possible solutions to improve women’s access to justice.

The study proposes further expenditure on legal aid. It does not extend to a review of what basic changes are needed to our current legal aid and advice system.

The continuing Commissioners consider that Commissioner Morris’s study establishes pressing need for further work to investigate specific and effective options to improve access to legal advice and the optimum dispatch of court business, as has been attempted, not without controversy, in the December 1998 report of the Lord Chancellor’s Department Modernising Justice: the Government’s Plans for Reforming Legal Services and the Courts

For example, the great bulk of the civil legal aid budget is expended in Family Court proceedings. That important Court has major responsibility for dealing with the difficult issues relating to circumstances of families in New Zealand including custody, neglect and abuse of children and domestic violence. It seems that any review of the system of civil legal aid should logically be preceded by an examination of possible improvements to Family Court procedures and we have invited the Minister of Justice to refer such an examination to the Commission as a new project. He has given a positive response. The Chief District Court Judge, the Principal Family Court and Youth Court Judges and a group of Family Court Judges whom we have consulted, as well as members of the Family Court bar, have pointed to deficiencies in the existing law which impede the just and efficient discharge of their task; some are referred to in the study. We wish to examine how the existing system can be made to work most effectively.

In a new project Battered Defendants the Commission is undertaking an examination of the medical and legal issues advanced in Lavallee and Oakes – what has been called “Battered Women’s Syndrome”. And in its forthcoming Evidence Code and accompanying report the Commission offers recommendations building on the responses to its Preliminary Paper 26 concerning the evidence of vulnerable witnesses.

In a recent work Dissonance and Distrust: Women in the Legal Profession (Oxford 1996) Margaret Thornton, Professor of Law and Legal Studies at La Trobe University, describes her parallel project in Australia

“. . . I have rejected empiricism in favour of semi-structured, in-depth interviews designed to give voice to those who have long been silenced.
The subjectivity of these voices reminded me that I could not claim a non-existent neutrality since I devised the questionnaire, asked questions, shaped conversations, interpreted transcripts, developed a thesis, and selected exemplary excerpts. My work has also been informed by my own experiences as a feminist legal academic. In fashioning a text about women and law, I therefore acknowledge that I am playing an active role in constituting legal knowledge; I cannot pretend that I am merely interpreting it:
‘Discussions of the ‘situatedness’ of knowers suggest that the claims of every knower reflect a particular perspective shaped by social, cultural, political, and personal factors and that the perspective of each knower contains blind spots, tacit presuppositions, and prejudgments of which the individual is unaware.’
The disclaimer issued by judges that they do not make law, but merely interpret it, has long been exposed as a positivistic myth designed to occlude judicial partiality. Truth claims of all kinds have to be treated with caution.” (pages 4–5)

The nature of the issues is such that the present study also is inevitably one of a range of potential subjective analyses, each of which is necessary to a complete understanding of the deficiencies in our laws and institutions.

Commissioner Morris and the other current Law Commissioners agreed that the nature of the present study is such that it should be presented as hers, rather than as the normal collegiate document representing consensus following a process in which all Commissioners have participated. In recognition of the importance of expression and debate of the views expressed in the present work, the Commission has established a new series of publications – Study Papers – to accommodate it and other studies.

There has in recent years been considerable criticism of fundamental structural problems within the legal system which are said to keep women in situations of disadvantage (for example Edwards Sex and Gender in the Legal Process (1996), Kennedy Eve Was Framed Chatto and Windus (1992), Thornton (supra) and Fredman Women and the Law (Oxford: Clarendon Press (1997)). Fredman has asserted that truth and justice are not the objective realities that traditional liberal theory would suppose them to be. It is powerfully argued that law is not a disembodied neutral force. It is a force which is made by people in power, and it is influenced by prevailing political and economic ideologies, and the desires and prejudices of its makers. Although legislative changes have removed explicit inequalities, women (and other groups who differ from the ‘benchmark’, which is said to be male, white, able-bodied, heterosexual and possessed of particular political views) remain in fact disadvantaged. It is said with force that this is because the current liberal paradigm on which our legal system is based is fundamentally flawed.

The importance of the issues, recognised internationally by the Convention on the Elimination of all Forms of Discrimination Against Women, was the subject of Cooke J’s judgment in Van Gorkom v Attorney-General [1977] 1 NZLR 535 affirmed [1978] 2 NZLR 387.

Recent decisions of superior courts in our own and similar jurisdictions provide instances where the common law was changed by the superior courts to rectify the kind of abuse described in the present thesis: R v Lavallee [1990] 1 SCR 852 (Supreme Court of Canada) (followed in R v Oakes [1995] 2 NZLR 673 (CA)), Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA), Reg v R [1992] 1 AC 599 (HL), Barclays Bank Plc v O’Brien [1994] 1 AC 180 (HL) (followed in Wilkinson v ASB Bank Ltd [1998] 1 NZLR 674 (CA)); Z v Z [1997] 2 NZLR 258 (CA) and W v Attorney-General CA 239/98 (judgment 6 May 1999). In other spheres it has been necessary for Parliament to intervene: Domestic Violence Act 1995; Evidence Act 1908 ss 23AB and 23AC; Matrimonial Property Act 1976. This list throws up previous failures of the common law – to recognise the effect of physical and emotional abuse; to protect women from rape by an estranged husband; to credit them as competent to give credible evidence; to protect guarantors from the effects of undue influence; to deal justly with the consequences of dissolution of marriage; to understand the reasons for delay in commencing suit on the grounds of sexual abuse.

What may be thought striking, and deeply troubling, is how fundamental the issues are and how long the law has taken to react to injustice. The virtue of such works as John Stuart Mill The Subjection of Women 1869 (Classics of Modern Political Theory Oxford 1997), Thornton and Fredman is to challenge basic assumptions and require a reasoned response.

Commissioner Morris’s account of the views of some 3000 women obtained at 100 meetings has a double importance: first the fact that such opinions are held; and secondly that the reiteration of individual views, any of which might if seen in isolation be open to challenge as subjective, is a strong pointer to their justification.

The Commission’s responsibility in law reform includes the need to take heed of the warning expressed by James Harvey Robinson in a passage adopted in Cardozo’s classic The Nature of the Judicial Process (Yale 1921) pages 175–176

“Our beliefs and opinions like our standards of conduct come to us insensibly as products of our companionship with our fellow men . . .  We are constantly misled by our extraordinary faculty of ‘rationalising’ – that is, of devising plausible arguments for accepting what is imposed upon us by the traditions of the group to which we belong . . . we are ever and always listening to the still small voice of the herd, and are ever ready to defend and justify its instructions and warnings, and accept them as the mature results of our own reasoning.”

The noun now italicised makes, ironically enough, both Robinson’s point, and also that of Commissioner Morris. The study is a significant step towards justice for women and so for all New Zealanders.

The Hon Justice Baragwanath

President