W AIKATO LAW REVIEW TAUMAURI VOLUME 12 2004 CONTENTS The Appearance ofJustice Hon Justice Anderson Specialist Courts and Tribunals Trevor Daya-Winterbottom 21 The Explosion ofNew Zealand Legal Scholarship in the 1960s Thomas Gibbons 46 Delivering a Bicultural Legal Education: Reflections on Classroom Experiences Jacquelin Mackinnon & Linda Te Aho 62 Judging in Context: Lord Wilberforce's Legacy to New Zealand Law Peter Spiller 83 The Privy Council and Native Title: A Requiem for Wi Parata John William Tate 101 Book Reviews Craig Coxhead and Jacinta Ruru 153 Editor: Professor Peter Spiller Editorial Committee: Peter Spiller, Trevor Daya-Winterbottom, Al Gillespie, Brenda Midson, Gay Morgan, Linda Te Aho and Leah Whiu. Administrative support: Kathryn Marr and Janine Pickering. The Waikato Law Review is published annually by the Waikato University School of Law. Subscription to the Review costs $20 per year (plus postage for overseas subscribers); 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 School of Law Waikato University Private Bag 3105 Hamilton New Zealand North American readers should obtain subscriptions direct from the North American agents: Wm W Gaunt & Sons Inc 3011 GulfDrive Holmes Beach Florida 34217-2199 USA This issue may be cited as (2004) 12 Waikato Law Review. 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. ISSN 1172-9597 EDITOR'S INTRODUCTION I am pleased to present the twelfth edition of the Waikato Law Review. I thank the authors who submitted articles to the Review, the referees to whom articles were sent, and the staff of the Waikato Law School who have assisted. The Review is proud to publish the Harkness Henry Lecture of Hon Justice Noel Anderson, President of the Court of Appeal of New Zealand. His lecture on the appearance of justice covered significant and topical themes. Through the publication of the Lecture, kindly sponsored by the partners of Harkness Henry, Justice Anderson's valuable Lecture will reach a wider audience. The growing prestige of the Review continues to be reflected in the articles received from outside the University of Waikato. The Review is pleased to publish a further article on the highly topical issue of native title by John Tate of the University of Newcastle in Australia. A graduate of the Waikato Law School, Thomas Gibbons, has written on "The Explosion of New Zealand Legal Scholarship in the 1960s". The other articles in the Review were written by staff at the University of Waikato. These articles, and the others noted above, underline the Waikato Law School's continuing commitment to its foundation goals, namely, professionalism, biculturalism and law in context. Professor Peter Spiller, Editor, Waikato Law Review. HARKNESS HENRY & Co BARRISTERS AND SOLICITORS PARTNERS ADDRESS Warren Scotter KPMG Centre Paul Middlemiss 85 Alexandra Street Simon Menzies Hamilton Lynden Earl New Zealand Christine Grice Simon Ellis POSTAL ADDRESS Mark Thomson Private Bag 3077 Jake Casey Hamilton New Zealand CONSULTANT Murray Branch COMMUNICATION Telephone (07) 838 2399 ASSOCIATES Facsimile (07) 839 4043 Chris Marr DX GP 20015 Jillene Peters Email [email protected] jarrod True Website www.harkness.co.nz Kirsty McDonald joan Forret Matthew Peploe ® LN\1\fl/l/7 N K L/ A NETWORK OF fNDEI'ENDENT L.EGAL PRACTICES NA. TIONWIDf THE HARKNESS HENRY LECTURE THE APPEARANCE OF JUSTICE BY HON JUSTICE ANDERSON• A discussion of the appearance of justice would seem incomplete without some reference to Lord Hewart's dictum in R v Sussex Justices; ex parte McCarthy that justice must not only be done but should manifestly and undoubtedly be seen to be done. 1 But even to his contemporaries Gordon Hewart was an abysmal example of the judiciary. Indeed a few years later Mr Justice Avory was moved to suggest that Lord Hewart's words had been misreported. Hewart was biased and bullying. One reasonably benign biographer, Robert Jackson, described him as autocratic and irascible in Court, one whose obstinacy sometimes drove to despair counsel in whose favour he was about to find. 2 The alacrity with which Lord Hewart would dismiss appeals in hanging cases, or force juries into questionable verdicts, is disgraceful. But there is a dramatic force in the utterance of wise counsel by its human antithesis. Consider for example the admonitions of the seemingly foolish Polonius to Laertes: To thine own self be true, and it must follow as the night the day, Thou canst not then be false to any man. 3 Or, the hypocritical protestations about honour by lago: But he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.4 My point is that Hewart's aphorism is emphasised by the irony of its source. It is so frequently recalled because it appeals to our perception of a fundamental aspect of justice, its appearance. DCNZM, President of the Court of Appeal of New Zealand. I (1924] KB 256,259. 2 Jackson, Robert The Chief(!959) 197. 3 Hamlet, Act I, Scene 3. 4 Othello, Act III, Scene 3. 2 Waikato Law Review Vol12 In its most obvious expression, the appearance of justice is a Judge who listens courteously, deals with the parties and their counsel even-handedly and articulates a judgment convincingly and with appropriate moderation. Such a Judge may have heard of Sir Graham Speight's advice to new appointees that the most important person in the Courtroom is the loser. But the issues run deeper and more extensively than the way in which a Judge appears to conduct a trial. The appearance of justice is conditional on institutional, procedural, functional, participatory and public elements of justice. The institutional requirements are concerned with the appointment, tenure and accountability of the judiciary. It goes without saying that Judges should be appointed on the basis of merit, without political considerations, and should discharge their duties without external influences. To achieve those objectives there must be sound and impartial appointment procedures and permanent tenure of office. I. LIMITS ON NUMBERS Safeguarding against Executive manipulation of courts by swamping them with new appointments are the statutory limits on the numbers of High Court Judges (which include the Judges of the Court of Appeal and Supreme Court), the limits on the numbers within those two appellate courts, and the numbers of District Court Judges. At present the total numbers in the higher judiciary are the Chief Justice and 56 High Court Judges. Of these the Chief Justice and no fewer than 4 and no more than 5 may be Judges of the Supreme Court. In addition to the President, no fewer than 5 and no more than 6 may be Judges of the Court of Appeal.5 The maximum number of District Court Judges is 140.6 Obviously it is possible for Parliament to alter these provisions but the necessity for structural change by a democratic process is a hurdle to arbitrariness or manipulation. II. APPOINTMENT OF JUDGES The appointment of Judges is a perennial subject of public discussion. The issue gathered particular prominence in the debate over the abolition of appeals to the Privy Council. The repatriation of final appeals makes this issue particularly important because it is not difficult to imagine how, in 5 Judicature Act 1908, ss 4(1) and 57(2), and Supreme Court Act 2003, s 17(1). 6 District Courts Act 1947, s 5. 2004 The Appearance ofJustice 3 theory, certain outcomes might be rendered more likely by the appointment of Judges predisposed to them by personality or philosophical inclination. The ability to influence the character of a final court would be, in a general sense, a matter of genuine concern. Fortunately, this type of problem has not been a practical issue in New Zealand for a number of reasons. Not least amongst these is the conventionally astute observance by Attorneys-General of impartiality in making appointments. The exemplar, Sir Geoffrey Palmer, has from time to time emphasised to the judiciary the anxious concern with which he considered every case of judicial appointment by him. And as far as the Supreme Court is concerned, public anxiety evaporated when appointments were made on the unquestionably principled basis of seniority. High Court Judges are appointed by the Governor-General in the name and on behalf of Her Majesty.7 Judges of the Supreme Court, the Court of Appeal, Associate Judges and District Court Judges are appointed by the Governor-General. 8 The reference to Her Majesty is absent in respect of the Court of Appeal and Supreme Court because the superior court Judges are ipso facto the Queen's Judges, and other members of the judiciary are not. In respect of the High Court, what used to happen in practice was that the Attorney-General and the Chief Justice would discuss possible candidates identified by their coming to the notice of the Attorney-General or Chief Justice through their eminence as practising barristers. The Presidents of Law Societies and others who might be expected to have an informed view were sounded. An approach would then be made, often by the Chief Justice but sometimes by the Attorney-General. If the responsibility of office were accepted, as it usually was, the Attorney-General would decide to advise the Governor-General to appoint. By convention, the Attorney-General mentioned the new Judge's name in Cabinet only at that point and simply by way of advice, not for the purposes of discussion, thereby maintaining the Attorney-General's independence in the matter of appointments.