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Waika to Law Review Taumauri WAIKA TO LAW REVIEW TAUMAURI VOLUME! 1993 CONTENTS Foreword Editor's Introduction Articles The Making of a New Legal Education in New Zealand: Waikato Law School Margaret Wilson Developing and Teaching an Introduction to Law in Context: Surrogacy and Baby M Nan Seuffert, Stephanie Milroy and Kura Boyd 27 "The Pakeha Constitutional Revolution?" Five Perspectives on Maori Rights and Pakeha Duties Paul Havemann 53 Judges at Work: The New Zealand Court ofAppeal (1958-1976) Peter Spiller 79 "What's Love Got To Do With It?" An Analysis of an Intervention Approach to Domestic Violence Ruth Busch and Neville Robertson 109 Reclaiming Economic, Social and Cultural Rights Paul Hunt 141 Case Note Securities Commission v R E Jones Peter Fitzsimons 165 Book Review Public Law in New Zealand by Mai Chen and Sir Geoffrey Palmer Bede Harris 177 Editor: Peter Spiller Editorial Committee: Peter Spiller, Kaye Turner and Margaret Wilson The Waikato Law Review is published annually by the Waikato University School of Law. Subscription to the Review costs $20 per year; and advertising space is available at a cost of $200 for a full page or $100 for a half page. 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 Gault & Sons Inc 3011 Gulf Drive Holmes Beach Florida 34217-2199 USA This issue may be cited as (1993) 1 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 publishers. The Editor acknowledges with thanks the permission of the New Zealand Law Society for the reproduction of the picture of the Court of Apppeal 1958, and the permission of Butterworths for the reproduction of the picture of the Court of Appeal 1968. FOREWORD As New Zealand's newest law school reaches the end of its third year of operation and looks forward to honouring its first graduates in February 1994, it is appropriate to mark its coming of age with the first issue of this, the Waikato Law Review. Such a publication was but a distant dream for the small group of University and Law Society representatives who met together from early in 1987 to prepare the case for the establishment of the country's fifth law school. The Waikato Law School has had to surmount difficulties that could not have been foreseen when its establishment was first announced in October 1989. It has done that and it is now well and truly embedded into the Uni~ersity of Waikato and into the national educational scene. The University has been fortunate in the calibre of the staff it has been able to recruit and delighted with the performance of its students. Waikato Law School staff and students will play an increasingly prominent role in New Zealand and this publication will, I am sure, take its place as an important contribution to New Zealand's legal literature. · Gerald Bailey, Chancellor, University of Waikato. EDITOR'S INTRODUCTION In 1953, Professor Robert McGeehan of Victoria University College launched the first of the New Zealand university law reviews. In an article in the first edition of the Victoria University of Wellington Law Review, Professor McGeehan stressed the need to explore the political, economic and social background of legal decisions and to question whether they are good and sound decisions not only for their logic in law but in their justice and practical bearing on the lives of twentieth century New Zealanders. Forty years later, the Waikato Law Review becomes the sixth New Zealand university law review to be published. Its goals closely reflect the approach advocated by Professor McGeehan. Together, the articles in this first edition of the Waikato Law Review reveal the importance attached to examining the law in the context of its historical, social, economic and political background in New Zealand, with the use of critical, conceptual and empirical analyses. The Waikato Law Review also cherishes the goal of biculturalism, which carries with it a commitment to advancing and encouraging the Maori dimension in the legal system. The Maori title of the Review, taumauri, means "to think with care and caution, to deliberate on matters constructively and analytically". This title both encapsulates and symbolises the values and goals of the Review. The process of translating vision into reality requires much commitment and hard work, and this is no less true of the production of the first Waikato Law Review. I wish to record my thanks to the academic and administrative staff of the Waikato Law School who have worked towards the publication of the Review, especially those who have written for this first edition. I thank those who have willingly refereed articles submitted for publication, Mr Gerald Bailey for writing the foreword, and the New Zealand Law Foundation for its generous financial assistance for the first edition. Finally I thank you, the subscribers and readers of the Review, for your support: I trust that you will find in this and subsequent editions much to stimulate and inform. Dr Peter Spiller, Associate Professor of Law, Editor, Waikato Law Review. THE MAKING OF A NEW LEGAL EDUCATION IN NEW ZEALAND: WAIKATO LAW SCHOOL BY MARGARET WILSON* I. INTRODUCTION The formal establishment of the Waikato School of Law on 1 July 1990 marked the opening of the first new School of Law in New Zealand in over ninety years. The impetus for the new School came initially from the University of Waikato and was supported by the local legal profession and the Council of Legal Education. While each of these institutions had its own reasons for wanting this new development in legal education, there was a consensus that a new type of legal education was necessary. In this article I shall examine the precise nature and form of the new legal education represented by the W aikato Law School. I shall present the context within which the School was established, analyse the expectations of the various groups who assisted with the formation of the School, and describe the institutional framework that was constructed to realise these expectations. I shall then reflect on the first three years' experience of the School, and what lessons can be drawn from this for the School and legal education in New Zealand generally. II. THE CONTEXT WITHIN WHICH THEWAIKATO LAW SCHOOL WAS ESTABLISHED The discourses that surround legal education centre on the issue of what is the appropriate role for the lawyer within society. Those who see the occupation of the lawyer primarily being the delivery of legal advice to clients tend to support a skills-based professional education and training. Those who see a broader role for the lawyer as an active participant within the legal system and the larger community, tend to support a conceptually­ centred professional education. Legal education in New Zealand for many years reflected the former approach. Initially, control oflegal education lay in the hands of the judges and it was only in the late nineteenth century that the university colleges started to teach law. Even then, tuition was conducted primarily by practitioners, who were employed to teach part-time students in the evening because both teachers and students worked during the day in law firms. 1 However, certainly from the mid-1960's there were growing calls to provide a more liberal legal education. These came from LLB (Hons), M Jur (Auckland), Dean and Professor of Law, University of Waikato. Weston, "Early Law Tuition in Canterbury" (1958) 34 NZU 71. 2 Waikato Law Review Vol1 the growing number of full-time academically qualified law teachers, who taught a growing number of full-time students, and who were anxious to gain professional recognition for their skills from both the profession and the university authorities.2 By the late 1980's, these developments had gathered pace.3 The establishment of the Waikato School of Law was a conscious attempt by the New Zealand Council of Legal Education to move towards a new form of legal education that reflected a conceptual, contextual and critical approach to the study of law and the legal system, while providing the students with a professional qualification.4 Since 1984, New Zealand society experienced and is continuing to experience a period of radical change to all its institutions, including its tertiary educational and legal institutions, although they are amongst the last to be affected. This period is not dissimilar to that experienced during the 1890's when the foundations of what came to be known as the welfare state were being laid. Part of those foundations was the establishment of universities and the provision for legal education within them. The primary responsibility of the state for the social well-being of all its citizens was acknowledged in the 1890's but developed more comprehensively from 1935. Acceptance of this social responsibility by the state has been a distinguishing feature of New Zealand society over the past fifty years. This basic assumption of an active state role has been reflected within the design of all economic and social institutions, including the educational and legal systems. While it is easy to see the primacy of the state in the provision of education, it may also be argued that the legal system has reflected the proactive role of the state. For example, the abundance of legislation and the underdevelopment of common law legal principles may be seen as indicative of an active state which quickly moved to provide remedies where they seemed unavailable under the common law.
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