Waikato Law Review Taumauri VOLUME 26, 2018 Aiming for Simplicity [Norris Ward McKinnon Lecture] 1 Hon Justice Robert Fisher Lecture Series Celebrating the 25th Anniversary of Te Piringa – Faculty of Law Biculturalism in the Law: The I, the Kua and the Ka 24 Hon Justice Christian Whata Lawyers: The Profession into the 21st Century 43 Hon Justice Christine Grice Teaching Law in Context: Is It Still Relevant? 51 Professor Margaret Wilson Letters to the Security Council by Two Prisoners of War, Israel and Palestine (I) 61 Dr Alberto Alvarez-Jimenez Protracted Armed Conflicts, Invisible Civilian Suffering and International Law (II) 76 Dr Alberto Alvarez-Jimenez Legitimate Business Rationale and Section 36 of the Commerce Act 1986 96 Paul G Scott The New Zealand Bill of Rights Act 1990: A Proposition For a Right to a Quality of Life Protection 117 Aaron McIlroy Book Review: New Treaty, New Tradition: Reconciling New Zealand and Māori Law 137 Season Mary Downs Editor in Chief Linda Te Aho Editorial Assistance Gay Morgan, Trevor Daya Winterbottom Senior Student Editor Philip McHugh Student Editors Nicole Morrall, Aref Shams, Cassidy McLean-House Editorial Advisory Board Chief Justice, The Honourable Dame Sian Elias (honorary member), Chief Justice of New Zealand. Professor John Borrows, JD (Toronto), PhD (Osgoode Hall), LL.D (Dalhousie), FRSC, Professor, Canada Research Chair in Indigenous Law, Nexen Chair in Indigenous Leadership, University of Victoria, (Canada). Associate Professor T Brettel Dawson, Department of Law, Carleton University, Academic Director, National Judicial Institute (Canada). Gerald Bailey, QSO, LLB (Cant), Hon D (Waikato), Consultant Evans Bailey, Lawyers, former Chancellor of University of Waikato and member of the Council of Legal Education. Sir David Baragwanath, Honorary Professor, University of Waikato, Judge of the Appeals Chamber of the Special Tribunal for Lebanon, The Hague. Professor John Farrar, LLB (Hons), LLM, LLD London, PhD Bristol, Emeritus Professor of Law, Bond University, Professor of Corporate Governance, University of Auckland. Deputy Chief Judge Caren Fox, Māori Land Court. Judge Stephanie Milroy, Māori Land Court. Dr Dame Joan Metge, Law and Society, with particular interests in law’s role in an ethnically diverse society. Professor Margaret Bedggood, QSO, LLB Otago, MA NZ and London, former Chief Human Rights Commissioner. The Honourable Justice Paul Heath, Judge of the High Court of New Zealand. The Honourable Sir Eddie Durie, KNZM, first Māori appointed as a Justice of the High Court of New Zealand, and leading legal expert on the Treaty of Waitangi. Professor Alex Frame, LLB Auck LLM, LLD Well, former Chair in Te Piringa – Faculty of Law, University of Waikato and Director of Te Matahauariki Research Institute. Professor Paul Hunt, Department of Law, University of Essex, member of the Human Rights Centre, University of Essex and Adjunct Professor, University of Waikato. The Honorable Justice Joseph Williams, Judge of the High Court of New Zealand. Judge Peter Spiller, Honorary Professor of Law, University of Waikato. Associate Professor Morne Olivier, School of Law, University of the Witwatersrand. Professor Michael Hahn, Chair of European Law, University of Lausanne, Honorary Professor of Law, Te Piringa – Faculty of Law, University of Waikato. The Waikato Law Review is published annually by Te Piringa – Faculty of Law at The University of Waikato. Subscription to the Review costs $40 (domestic) and $45 (international) per year; and advertising space is available at a cost of $200 for a full page or $100 for a half page. Back numbers are available. Communications should be addressed to: The Editor Waikato Law Review Te Piringa – Faculty of Law Waikato University Private Bag 3105 Hamilton 3240 New Zealand North American readers should obtain subscriptions direct from the North American agents: Wm W Gault & Sons Inc 3011 Gulf Drive Holmes Beach Florida 34217-2199 USA This issue may be cited as (2018) 26 Wai L Rev. All rights reserved. No part of this publication may be produced or transmitted in any form or by any means electronic or mechanical, including photocopying, recording or any retrieval system, without permission from the Editor in Chief. ISSN 1172-9597 Introduction It is my pleasure to present the 2018 edition of the Waikato Law Review and the riches within. As is customary, the Norris Ward McKinnon Lecture takes pride of place on the first page of the Review. In this edition the Hon Justice Fisher takes the opportunity to convey the clear message that “the defining characteristic of great lawyers is their ability to simplify” and outlines ideas as to how lawyers, not noted for simplicity, might achieve this aspiration when drafting legal documents and legislation, when expressing legal views, and when teaching law. The Review then presents papers from a lecture series that celebrated the 25th Anniversary of Te Piringa, our Faculty of Law. Each lecture focussed on one of the founding principles of the Faculty: our bicultural commitment, professionalism, and teaching and researching law in context. In his lecture, the Hon Justice Whata acknowledges the commitment that Te Piringa – Faculty of Law has made to biculturalism from its inception and traces how the common law, after a lengthy period of glacial motion, has moved significantly in recent years to embrace a genuinely bicultural narrative. He concludes that while there is some distance to travel to achieve that goal, there is reason for optimism. Professor Margaret Wilson, the founding Dean of Te Piringa, explained why the Faculty’s goal of teaching law in context is still relevant in the face of contemporary challenges. Professor Wilson reminds us that legal rules are the output of a complex variety of factors. Teaching law in context allow students to recognise this complexity in order for them to fully appreciate the role and influence of law within a society. The Hon Justice Christine Grice, former President of the New Zealand Law Society, delivered a lecture on professionalism, emphasising the need for more diversity in the legal profession, and acknowledging the contribution that Te Piringa – Faculty of Law has made to diversity. An innovation in this edition is the publication of two interconnected articles by the same author, Alberto Alverez-Jimenez. The first article contains the essential human context for the second, which provides a legal analysis of how international humanitarian law and international criminal law could be interpreted in order to make civilian ordeals visible to the opponent. Without the powerful human content in article one, the legal analysis in article two would not have the level of understanding and impact that it does. The publication of the articles in this way reflects the unique culture at Te Piringa – Faculty of Law as demonstrated by its founding principles. Paul Scott, in his article on s 36 of the Commerce Act 1986, discusses New Zealand’s antimonopolisation provision and the usefulness of legitimate business rationale analysis in determining whether a firm’s conduct breaches s 36. It is always a pleasure to publish student work. In this edition, Aaron McIlroy investigates the development of a “quality of life approach” in human rights instruments, and Season Mary Downs reviews New Treaty, New Tradition: Reconciling New Zealand and Māori Law, by legal academic Carwyn Jones, Victoria University Press, 2016. I take this opportunity to whole-heartedly thank the editorial team and the peer reviewers for your valuable contributions. Publishing these important journals would not be possible without you. Ngā mihi me ngā manaakitanga, nā Linda Te Aho Editor in Chief The Norris Ward McKinnon Lecture Aiming for Simplicity By the Hon Justice Robert Fisher* I. Introduction This lecture has been given annually by current or former Governors-General, Prime Ministers, Ministers of Justice, Chief Justices and distinguished professors and judges. Tonight, you hear from a country lad raised nearby in Te Awamutu. But my roots at least equip me to talk about the topic for this evening. The topic is simplicity. Simplicity is an important topic for lawyers because: • evolution has left the human brain with marked limitations in its capacity to process information; • the only way we can work within those limitations is to keep things simple; • simplicity is achieved by identifying the intended audience, discarding the unnecessary, organising what is left, and communicating it efficiently; • lawyers are notorious for their failure on those fronts; • the only way lawyers can think clearly is to simplify; and • simplifying allows others to understand what lawyers are saying. This paper examines those propositions. The conclusion is clear: the defining characteristic of great lawyers is their ability to simplify. A. Limitations of the Human Brain 1. Origins of the human brain The brains of our ancestors were shaped by the natural world around them. They needed to interpret external phenomena if they were to achieve a relatively limited range of outcomes. Assessing terrain and vegetation would lead them to game and edible plants. Clouds, wind and temperature were a guide to expected weather. Interpreting the behaviour and expressions of others would promote the formation of extended families, the cooperative hunting of animals and the joint defence of territories. That was the environment in which our brains evolved. In evolutionary terms it was yesterday. Insufficient time has passed for our brains to evolve significantly since then. The point can be illustrated by the following facts: * Hon Robert Fisher QC, LLD, FAMINZ, arbitrator and mediator, Auckland, author, appellate judge Samoa and Cook Is, former NZ High Court Judge, Fulbright Scholar. My thanks are due to Auckland law graduate, Isabelle Boyd, for her research assistance. 2 Waikato Law Review Vol 26 • The current sapiens brain size (about 1200 ml) was reached about 300,000 years ago.1 • The current sapiens brain shape and organisation was reached about 35,000 – 100,000 years ago.2 • The Stone Age ended about 10,000 years ago.3 2.