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New Zealand Women's Law Journal Te Aho Kawe Kaupapa Ture a Ngā Wāhine

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New Zealand Women's Law Journal Te Aho Kawe Kaupapa Ture a Ngā Wāhine NEW ZEALAND WOMEN’S LAW JOURNAL TE AHO KAWE KAUPAPA TURE A NGĀ WĀHINE Volume 11 November 2018 Volume 11, November 2018 Copyright © individual contributors 2018 Published by LexisNexis New Zealand Limited Level 1 138 The Terrace Wellington 6011 The mode of citation of this journal is: [2018] NZWLJ (page). New Zealand Women’s Law Journal — Te Aho Kawe Kaupapa Ture a ngā Wāhine is a double- blind peer reviewed journal. Decisions as to publication are made by the Editors-in-Chief. A catalogue record for this journal is available from the National Library of New Zealand. ISsN 2537-9658 (Print) ISsN 2537-9666 (Online) Editors-in-chief: Ana Lenard and Allanah Colley Deputy editors: Josie Te Rata and Bridget McLay Marketing managers: Ihlara McIndoe and Danielle Ou Associate editors: Charlotte Agnew-Harrington, Renée Bayer, Charlotte Best, Harriet Farquhar, Frances Gourlay, Sophie Hayman, Christina Laing, Hannah Reid and Molly McCarthy Technical editors: Libby Brown, Sarah Koo, Aimee Mackey, Poppy Mitchell-Anyon, Imogen Little, Maddie Olliver, Diana Qiu, Tariqa Satherley and Bonnie Simmonds Advisory board: Hon Justice Susan Glazebrook, Hon Justice Susan Thomas, Hon Deputy Chief Judge Caren Fox, Lady Deborah Chambers QC, Kate Davenport QC, Frances Joychild QC and Mary Scholtens QC Academic review board: Jane Derbyshire, Stephanie Marsden, Professor Annick Masselot, Brenda Midson, Professor Elisabeth McDonald, Helen McQueen, Khylee Quince, Associate Professor Linda Te Aho, Associate Professor Yvette Tinsley, Associate Professor Julia Tolmie, Natalie Walker, Associate Professor Nicola Wheen and Daisy Williams Contributors: Rt Hon Lady Brenda Hale DBE, Una Jagose QC, Bridget Sinclair, Bernadette Arapere, Kate Tarawhiti, Monique van Alphen Fyfe, Indiana Shewen, Gill Gatfield, Litia Tuiburelevu, Ruby King, Jasper Fawcett, Charlotte Doyle, Katharine Guilford, Shontelle Grimberg, Dr Anna Hood, Emily Blincoe, Cassandra Kenworthy, Anthea Williams and Sam McMullan Typesetting: Zsenai Logan Proudly sponsored by: Antonia Fisher QC, Alex McDonald and CONTENTS — RĀRANGI UPOKO ana lenard and allanah colley Editorial — Kōrero tīmitanga 1 una jagose qc Foreword — Kupu whakataki 3 Rt Hon Lady Brenda Hale DBE An inspirational career 5 bridget sinclair, Bernadette Arapere, Kate Tarawhiti, Monique van Alphen State of the Nation — Tauākī o te Motu 18 Fyfe and indiana shewen Gill Gatfield Be just & fear not 43 Litia Tuiburelevu Legally brown: The experiences of Pasifika women in the criminal justice system 78 Ruby King and Jasper Fawcett The end of “He or She”? A look at gender-neutral legislative drafting in New Zealand and abroad 107 Charlotte Doyle The eactivationr of pay equity in New Zealand by Terranova: Why did it take so long? 129 Katharine Guilford Prosecuting sexual violence in conflict and the future of the common criminal purpose in international criminal law 168 Shontelle Grimberg Women without a voice: Japan’s silencing of its “comfort women” and the redemptive future the Tokyo’s Women’s tribunal offers to the gendered and colonial history of international law 207 Commentaries — ngā pito kōrero Dr Anna Hood Review Essay: Reflections on the perpetual cycle of discrimination, harassment and assault suffered by New Zealand’s women lawyers and how to break it after 122 years: Reviewing Gill Gatfield’s Without Prejudice 249 Emily Blincoe Yes, no or maybe? The odd”“ result in Christian v R 265 Cassandra Kenworthy Employment status of relief workers: Lowe v Director-General of Health 285 Anthea Williams Wrongful birth and lost wages: J v Accident Compensation Corp 295 Sam McMullan Commissioner of Police for the Metropolis v DSD 310 EDITORIAL — KŌRERO TĪMATANGA There are a number of people who are anxious to leave #metoo behind and move on, but I don’t think people realize how short of a time we have been discussing this issue compared to how long this has been an issue. Tarana Burke, Me Too Founder1 We started the New Zealand Women’s Law Journal — Te Aho Kawe Kaupapa Ture a ngā Wāhine to provoke conversations about how the law affects our wāhine in Aotearoa. In 2016 when we began work on the Journal, we did not quite anticipate just how relevant this platform would become for those within the profession. With the reporting of sexual assault and harassment at Russell McVeagh in February of this year, public conversations began about the behaviour and experiences our lawyers face in their workplaces. These conversations were not new. In fact, they have been had many times before. But they seemed to be taking place with a new fervour. And everyone seemed to be listening. Now that we are coming towards the end of 2018, we are extremely aware of the number of experiences shared, reports written, surveys conducted, policies changed and public discussions had. Some might say they are ‘tired’ of these relentless discussions and they ‘just want to get on with their work’. But we are not done talking and the time for real change to occur has only just begun. We want policies to turn into everyday standards that are upheld, we want changes to regulation to lead to accountability and we want surveys to turn into ideas that are actioned. We want you to keep listening. This Journal can provide one platform by which these conversations are continued and ideas put forward. We are honoured to present this edition of the Journal, which we believe does just that. We want to thank everyone who has contributed to this edition and to this dialogue. We are proud to be sharing their experiences and their whakaaro (ideas) with you. Volume II of 1 Tarana Burke, as quoted in Courtney Connley “#MeToo founder Tarana Burke has big plans for the movement in 2018” (19 January 2018) CNBC <www.cnbc.com>. 1 [2018] NZWLJ the Journal not only discusses the mahi (work) we need to undertake in our own profession, but it also discusses how we can best serve the women in our communities and how the law can be a source of protection and change in our society. Thank you to those who have continued to tautoko (support) the work of this Journal, by providing contributions, advice, editing prowess, time and passion. We could not produce this without you and it has been an honour to work with you. We also thank our family, friends and colleagues who have enabled us to do what we do. We are now proud to present this second edition of the New Zealand Women’s Law Journal — Te Aho Kawe Kaupapa Ture a ngā Wāhine. We hope it may provide a platform for those who are often silenced to be heard. We hope it becomes part of the impetus for change we so desperately need. We have had these conversations before. This time, let’s ensure we create the change that means we do not need to have them again. Ana Lenard and Allanah Colley Editors-in-Chief 29 October 2018 2 FOREWORD — KUPU WHAKATAKI This year New Zealand has celebrated a gender equality milestone: it is 125 years since New Zealand women won the right to vote. From this vantage point it is clear that some significant gains have been made towards gender equality. We have our third woman prime minister; the number of women practising law outnumbers men; and we have a majority of women sitting on the Supreme Court. We are proud of these achievements. Despite these outward signs of progress, it has also been a year in which misogyny in the legal profession has been in the spotlight; a year in which sexual misconduct, bullying and harassment has been exposed as commonplace. Culture is the hardest thing to change. The feminist revolution has achieved much, but “revolution is not a one-time event”.1 Sexism is like an iceberg. Overt sexual or sexist misconduct is the visible, exposed tip: easy to recognise but harder to challenge — maybe impossible if you are the one who suffers it. Lurking beneath are problems that are harder to identify: unconscious bias, double-standards, cultural ideas about what it means to be feminine or masculine; you can no doubt think of more. The system we have inherited gives the greatest rewards to the lawyers who sacrifice their home and family life to long hours at the office; who may even behave badly towards colleagues but so long as they deliver the results, this is overlooked. Wouldn’t it be transformational to rebuild the system so that it respects all individuals equally and values collective effort and collaboration, while allowing space for lawyers to have equally rewarding professional and home lives? To achieve this we need to examine how we educate, train and promote lawyers, and how we measure success in our profession. We need to revisit how we define “fit and proper person”, and the regulatory systems that promote and protect the high standards of professionalism we expect. 1 Audre Lorde Sister Outsider: Essays and Speeches (Crossing Press, New York, 1984). 3 [2018] NZWLJ Meaningful change will require buy-in from all parts of the profession: educators, regulators, judges, partners in firms, chief executives in agencies, practising lawyers. Leadership must come from the top but leaders also need to be open to advice from a diverse range of viewpoints, not least from the new generation of lawyers. The insights and the challenges offered in this second volume of Te Aho Kawe Kaupapa Ture a ngā Wāhine will help guide us towards change. Whether through embracing concepts of tuakana/teina (Bernadette Arapere and Kate Tarawhiti, at 22), promoting gender-neutral language to advance gender equality (Ruby King and Jasper Fawcett, at 107) or understanding the history of women lawyers in order to transform women’s experiences in the future (Dr Anna Hood, at 249). I look forward to the challenges ahead, to standing strong alongside the women and men of the profession who are committed to this mahi, and making our profession a safer place where everyone can thrive and reach their full potential.
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