2 October 2012

As Winston Churchill reminded us in 1947, “indeed it has been said that democracy is a form of government which may be rationally defended not as being good, but as being less bad than any other”. Governance is inevitably fraught with compromise, and its best exercise requires sufficient checks on its operation, so that it can be seen as fair and just when interacting with those affected by it.

The establishment of the Office of the Ombudsman in 1962 to provide such checks was a major constitutional innovation. New Zealand was the first English speaking country outside of Scandinavia to adopt the Ombudsman concept and this 50th anniversary offers an opportunity to reflect on how it has helped foster fairness and justice in the government’s dealings with its people.

The legislation which underpins the New Zealand Ombudsmen’s Office remains a model to which others aspire. Its success is widely recognised, and that success is evidenced in part by its rapid adoption throughout Australia, Britain, Canada and the Pacific.

The New Zealand ombudsmen are supported by their genuine independence: There is independence in the structure and functioning of the office and independence in its financing. That independence is confirmed by the office being an office of parliament, not an organ of executive government.

The fact that an Ombudsman can gain access to the inner workings of the government system and independently assess what has happened and why, has helped the public sector focus upon the manner in which it interacts with the people it’s designed to serve. The Office provides a vital ‘check’ within our democratic system.

And it’s not just whether government actions have been appropriate or not, the Ombudsman methodology is distinctive in that it seeks a conciliatory resolution of issues, in contrast to the legal system’s rather more adversarial edge.

Arguably, one of the keys to the office’s success has been the careful and thoughtful manner in which it has been developed since 1962.

What then is a modern ombudsman?

When the office was first established in 1962, the Ombudsman’s jurisdiction was limited to investigating complaints about central government departments and organisations.

In 1968, the Ombudsman’s jurisdiction was extended to include education and hospital boards.

And then in 1975, the legislation was consolidated in the Ombudsmen Act 1975.  The appointment of additional Ombudsmen was permitted, and the Ombudsman’s jurisdiction was extended to include local government agencies.

In July 1983, the Official Information Act 1982 came into force.  Under this Act, the Ombudsman was empowered to investigate and review complaints about decisions by Ministers and central government agencies on requests for information.

Then in March 1988, the Local Government Official Information and Meetings Act 1987 added complaints about decisions by local government agencies withholding information.

In January 2001, the Protected Disclosures Act 2000 came into force.  This, commonly known as the “whistle-blower” legislation, made the Ombudsman responsible for providing advice and guidance to any employee, in the public or private sector, who was considering making a disclosure about serious wrongdoing in their workplace. The Ombudsman is in fact one of the “appropriate authorities” listed in the Act to whom a protected disclosure can be made.

Four years later, in January 2005, the Crown Entities Act 2004 finally brought all crown entities within the Ombudsman's jurisdiction.

As if that wasn’t enough, in June 2007, the Ombudsman was designated a National Preventive Mechanism (NPM) under the Crimes of Torture Act 1989 (COTA).  That Act gave effect to New Zealand’s obligations under Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“OPCAT”), making the Ombudsman responsible for visiting prisons, immigration detention facilities, health and disability places of detention, child care and protection residences, and youth justice residences, to ensure those nasty things didn’t happen here. The Ombudsman in fact monitors and makes recommendations to improve the conditions of detention and the treatment of detainees.

Finally, in October 2010, the Ombudsman, along with the Human Rights Commission, and the New Zealand Convention Coalition, took on the independent role of protecting and monitoring implementation of the United Nations Convention on the Rights of Persons with Disabilities.

One could say that over 50 years the role of the Office has expanded somewhat.

The New Zealand Ombudsman’s office has, however, not been immune from the need to deal with complaints more effectively and efficiently. In the 2011/2012 year 10,636 complaints and other contacts were received, up 22% on the previous year. Cases on hand at any time have grown from an average of 800 to over 1700.

New work flow structures allow the office to cope better with the unprecedented level of complaints and strategically the Office is putting more focus on encouraging better administrative practices in the state sector.

Despite Dame Beverley advising my office this afternoon, when we enquired after complaints of a lighter nature, that “it’s no fun palace over here you know”, they do get the odd, shall we say interesting complaint.

One such example was the inmate of a North Island prison who lodged a bitter complaint with the Ombudsmen’s Office when his Case Officer had refused to provide him with the prison building plans and the Prison Wardens’ Duty Roster for the next month.

But I think that was well topped by one of the first complaints Dame Beverley had to deal with when she first became an Ombudsman. It seems a bloke complained to the Ombudsman that his being failed a flying course was unjust. He had taken his hands off the controls of a light aircraft at 800ft in order to better argue with his instructor.

Our new Ombudsman, Dame Beverley, thought “I’ll get him in and explain carefully why I cannot uphold his complaint”.

Ten minutes into her carefully rehearsed speech, the complainant, a big man, upended the large glass topped table in her face and threw his papers after it. Dame Beverley, even if somewhat unsuccessful in convincing the complainant of the lack of merit in his case that day, is nothing if not astute in her employment strategy. The high level of karate skills that Deputy Ombudsman Leo Donnelly brings to his position, while fortunately not frequently needed, proved invaluable that day.

We are currently served by two outstanding Ombudsmen, Dame Beverley Wakem and David McGee.  They are supported by the Deputy Ombudsman, Leo Donnelly, a General Counsel, John Pohl and General Manager - Corporate, Peter Brocklehurst, as well as a team of 65 staff in Auckland, Wellington and Christchurch.

Dame Beverley is also the President of the International Ombudsman Institute, established in 1978, the global organisation for the cooperation of more than 150 ombudsman institutions. All in all the Office can be justifiably proud of its first 50 years and I wish it every success for the next 50.

Monday 9th January, 2012

The limited time available for the House to conduct its business places pressure on the Government’s legislative programme. While this tension can provide a safeguard against unfettered legislative activity, governments in New Zealand over many years have sought to supplement the House’s regular sitting hours by taking urgency [1]   to progress their legislative programmes, rather than solely for the passage of particular bills that genuinely need to be fast tracked.

The use of urgency has attracted considerable negative publicity, particularly where it allows select committee consideration to be by-passed. Its impact is potentially to suspend other House business, including question time and members’ business, remove stand down periods between the various stages of the legislative process, and to remove select committee consideration. In examining the concerns raised, the Standing Orders Committee in its review of the Standing Orders in the 49th Parliament had regard to the open and transparent operation of the House and good quality legislative scrutiny – in other words legislative accountability.

It sought to find ways to make government decisions on the legislative process more open and accessible, and for the House’s procedures to work in a way that reflected well on the institution of Parliament – for the House to be following a well established and deliberate set of rules in its law making, breaking from these only in exceptional circumstances.

This paper addresses the package of reforms the Standing Orders Committee recommended in it review of the Standing Orders, the balance necessary to achieve endorsement by the House, and the impact on the role of the Speaker.

Reviews of Standing Orders

The Standing Orders Committee reviews the Standing Orders during each Parliament. [2]   These reviews help ensure the ongoing relevancy of Parliament. They allow the House’s procedures to be adjusted to ensure:

• quality law making
• parliamentary scrutiny that enhances government outcomes
• proper opportunity for members to represent their constituencies, both regional and sectoral, and that these interests are balanced with the public interest
• the Government can advance its programme, and maintain the confidence of the House.

Revised Standing Orders were developed during a review conducted by the Standing Orders Committee in 2011. The Speaker chairs the Committee and presents the Committee’s report to the House. [3]   The revised Standing Orders, recommended by the Committee, were adopted by the House with effect from 21 October 2011, ready for the opening of the 50th Parliament following the general election on 26 November 2011.

Standing Orders – principles of good law making

The Standing Orders are akin to constitutional rules. They reflect the exclusive right of the House to control its own proceedings. The House’s privileges are part of the general law. [4]   The Standing Orders are the House’s own code of practice, which sets out the procedures to be followed. As constitutional rules they have to balance the Government’s need to progress its policy with effective scrutiny of legislative and budget proposals. The Standing Orders establish hurdles over which government proposals must pass:

• Debates to agree the first, second, and third readings of bills
• Time delays for progressing from one stage to the next to allow proper consideration by members
• Opportunities for public participation through submissions to select committees
• A select committee stage and an unlimited committee of the whole House stage where members may propose amendments.

The Standing Orders also set limits so as to ensure progress can be made:

• First, second and third reading debates have limited numbers of speeches (12) and limits on speaking times (10 minutes)
• Closures may be moved in the committee of the whole House
• Amendments that have more than a minor impact on the Government’s fiscal aggregates may be vetoed by a Minister.

In so doing, the Standing Orders balance the Government’s need to progress its legislation against effective scrutiny by Opposition parties. The rights of the Opposition are protected, without making it impossible for the Government to progress its legislative proposals.

The Standing Orders Committee takes this balance into account when reviewing Standing Orders. It does not tinker with the rules. Every change has implications that have to be weighed up carefully. The Committee seeks to come up with a package that will have overwhelming support. It has been criticised for this approach because it is seen as inherently conservative. However, the Committee remains firmly of the view that constitutional rules should not be changed lightly. To get the necessary support for a package of changes there has to be give and take. The Government may not always fully support all changes, but can see merit from an Opposition perspective. It is recognised that there will always be something of a conflict for governments in an effective Parliament.

Public submissions on Standing Orders

The Standing Orders Committee called for submissions from members and the public on its review of the Standing Orders. [5]   From the evidence the committee received two major themes emerged:

• Government’s need for more House time to advance its policy platform with less frequent resort to urgency
• Need to improve the quality of legislative scrutiny, with time for informed and open policy consideration and the observance of fundamental rights and freedoms.

Submitters drew particular attention to the use of urgency by successive governments to supplement the amount of House time available for them to implement their policies. They considered the use of urgency to meet the shortfall in sitting hours to be undesirable.

Standing Orders Committee approach

The Standing Orders Committee’s approach to addressing these themes was to:

• Examine ways to use the existing sitting pattern more effectively, while providing opportunities for members to debate matters that are important to them
• Provide incentives for negotiating the management of House business through the Business Committee. [6]  

The Committee produced a package of reforms that provide extra sitting time for government business, with the aim of using urgency only where legislation actually needs to be fast-tracked, and encourage more effective management of the business of the House through negotiation in the Business Committee. It balanced these with proposals that require instructions to reduce the time for the consideration of bills in select committees to be debated in the House, provide a focus on debating matters of importance to members in the committee of the whole House, along with recommendations to the Government aimed at enhancing scrutiny of legislative proposals before bills are introduced.

In recommending extended sitting hours within the normal House sitting pattern, rather than simply additional hours, the Standing Orders Committee sought to balance all the roles of members. As well as their roles as legislators and scrutinisers of government activity, members face demands as Ministers, party members, and representatives of their constituents and sectoral interest groups. These latter responsibilities, while not as fundamental, all require the time of members, time away from the capital, Wellington.

The Standing Orders Committee also had regard for long standing criticism of the New Zealand Parliament for legislating too much. A previous Prime Minister and academic, Rt Hon Sir Geoffrey Palmer, famously described it in 1979 as the “fastest lawmaker in the west”. [7]   Governments have frequently sought to use legislation to demonstrate they are responding to public concerns, where legislation in terms of additional powers or protections for citizens is not strictly required. To this end, the Standing Orders Committee’s recommendations sought to ensure that all legislative proposals are properly scrutinised for compliance with Cabinet guidelines [8]   and, in particular, with New Zealand’s fundamental rights and freedoms, as expressed in the New Zealand Bill of Rights Act 1990, before they come before the House, and that this scrutiny is made available to the House.

The proposals to provide extra time for government business and to encourage the Government to achieve more open and transparent management of its House business through the Business Committee are discussed further below. This is followed by examination of the Standing Orders Committee’s balancing proposals aimed at enhancing legislative scrutiny and outcomes.

Extended sittings

The Standing Orders Committee’s recommendation for extended sittings [9]   enables the House to sit on Wednesday and Thursday mornings to advance government business on the Order Paper, provided the Government has given the Business Committee notice in the week before. This is not urgency by another name. Only the stage notified on the Order Paper may be taken during a sitting extended in this way. Urgency is still available to the Government to progress urgent business. However, a Minister moving urgency must now inform the House with some particularity of the circumstances that warrant the claim for urgency. [10]  

This requirement should provide greater transparency about the need to fast track particular bills. At the same time there is an incentive to manage non-urgent government business stage by stage through extended sittings, the Government having given notice to the Business Committee in the week prior, making the timing apparent to members and the public well in advance.

Incentives for negotiation in Business Committee

The Business Committee is a formal forum for considering the management of House business. Notice may be required for proposals and both notice and the Business Committee’s determination published, making the process a great deal more open and transparent than the inter-party negotiations behind closed doors that have characterised the management of the Government’s business in the past. [11]   Where the Government proposes to set aside the House’s rules, if it cannot persuade the Business Committee of the merits of its arguments for so doing, it may now have to debate them in the House, enhancing accountability.

The Standing Orders Committee in its recommendations set out to promote constructive engagement through the Business Committee, where all parties are represented. While the Government’s ability to order its business remains largely intact, there are greater incentives for the Government to go to the Business Committee and negotiate the passage of its bills.

The Business Committee now has greater powers to determine extra sitting hours for government business, and also to take a greater role in determining the length, nature and timing of debates in the House, in particular in the committee of the whole House. It can determine that the House sit on a Thursday evening and Friday morning and may also allow more than one stage to be taken during an extended sitting. It may determine bills with related subject matter to be cognate, [12]   thus potentially allowing debates at their first, second and third readings to be taken together. It can give select committees the power to meet during the sittings of the House and set the reporting dates for business referred to them from the House.

However, the Government cannot railroad its proposals through the Business Committee. It must build the support of other parties, for there are certain safeguards built into the Business Committee’s operations. It is chaired by the Speaker, and makes its decision not by majority but by unanimity or near unanimity as determined by the Speaker. To make Business Committee determinations more transparent, they must now be published on the Parliament website once confirmed. [13]   Formal notice to the Business Committee from the Government of extended sittings and committee stages will also be published in this way.

Incentives for better legislative outcomes

The committee of the whole House stage is currently the only unlimited stage of a bill’s passage through the House. Each part of a bill is considered in sequence and members may table amendments for consideration. In order to reduce the number of debateable questions, Ministers frequently instructed Parliamentary Counsel to draft bills in as few parts as possible, the consequence of which was often large two part bills, rather than a logical grouping and arrangement of the legislative provisions.

Now with the Business Committee able to shape the committee of the whole House debate, it is envisaged that Ministers might approach the Business Committee at an early stage, even before a bill is introduced, to get agreement around the debateable questions. Debate might be focused on the major issues, rather than the parts of the bill. It could be shaped to ensure the issues are debated, rather than machinery provisions, and allows for the putting forward of alternative propositions. This way a Minister has some certainty and bills can be drafted to promote the accessibility of the law, rather than so as to minimise debate.

Protecting effective select committee scrutiny

Select committee consideration is critical to the proper scrutiny of legislation. In a unicameral Parliament, such as New Zealand’s, it plays an especially important role providing the opportunity for in depth scrutiny of legislative proposals. It allows the public to participate and influence the legislative process. Participants need time to consider and prepare their submissions. The Standing Orders provide as a standard that select committees have six months to consider and make their reports on bills. [14]   To this end the Standing Orders Committee recommended changes aimed at ensuring committees have adequate meeting time during this period and governments are discouraged from restricting the time available to them to consider legislation.

Instructions to select committees reducing the time for the consideration of bills to four months or less or seeking to give a select committee additional powers to meet at times not otherwise available to it are now debateable. The Government must be open and transparent in its proposals for the consideration of its legislation and weigh up the use of precious House time to debate instructions. Select committees may not meet during extended sittings of the House on Wednesday or Thursday mornings, unless the Business Committee determines accordingly. Here the Government must offset progress in the House against progress in select committees, unless it has been able to negotiate a compromise in the Business Committee.

Bill of Rights scrutiny

Many submissions to the Standing Orders Committee review raised the need to ensure fundamental rights and constitutional principles are given proper consideration in the legislative process. While the Attorney-General is required by law [15]   to report to the House on any inconsistencies with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 in bills on introduction, submitters took the view that the Government should be required to account for inconsistencies at any stage of a bill’s passage. The Committee made recommendations aimed at improving scrutiny both prior to the introduction of a bill and at select committee.

It recommended to the Government that the Regulatory Impact Statement, [16]   which accompanies a bill’s introduction, give more prominence to Bill of Rights and other constitutional issues and that Cabinet guidelines require Bill of Rights reporting on substantive amendments proposed at the committee of the whole House stage of a bill. It recommended also that select committees receive briefings on these reports from government officials and that select committees also invite public submissions on these issues.

Scrutiny of substantive amendments at committee of whole House stage

Substantive amendments at the committee of the whole House stage are another serious impediment to good legislative scrutiny. They can be introduced as late as the day of the committee stage and will not have had the benefit of select committee consideration. Here the Standing Orders Committee drew attention to the power of the Business Committee to determine that a select committee consider such an amendment where a bill has already been reported to the House by the select committee. [17]   Rather than having to use time on the floor of the House moving an instruction, Ministers are encouraged to go to the Business Committee and negotiate consideration of amendments by a select committee, as a potential trade off against time in the committee of the whole House.

Arrangement of committee of whole House

The committee of the whole House stage now allows a broader debate. Debate is focused on the major provisions (each part) rather than the detail of individual clauses. It allows members who have not spoken in the limited first or second reading debates to participate and for alternative propositions to be raised in a public forum. It is the point where the House’s full proportionality is brought to bear on the text of the bill.

In its review, the Standing Orders Committee sought to promote constructive negotiations in the Business Committee about the arrangement of the debate in the committee of the whole House. It also agreed changes aimed at giving greater notice of committee stages so as to encourage earlier circulation of proposed amendments. Where practicable the Government must advise the Business Committee of the committee stages of bills to be taken in the next week. [18]   A schedule of proposed amendments will be published to help inform members for the debate. The Chairpersons of Committees will have the power to group amendments that form alternative propositions and select amendments where there are similar amendments at the same place in a bill. The aim being to maximise debate on issues of significance to members, rather than spending time discussing and voting on every individual amendment proposed.

Conclusions

The package of reforms recommended to the House by the Standing Orders Committee in its recent review included other changes, many of a more technical nature. The changes to provide extra time for government business and mechanisms to encourage more open and transparent management of the House’s business, balanced against protections for select committee scrutiny are the most significant changes made to the Standing Orders since the adoption of new Standing Orders to accommodate the move to a proportional electoral system [19]   in 1996. There has, however, been criticism that these changes are too timid.

Critics consider that by not recommending specific limits on aspects of the use of urgency, the Standing Orders Committee has not done enough to change the long standing use of urgency by governments simply to progress their business. [20]   They believe the use of urgency will continue to be viewed by the public, regardless of whether it is justified or not, as the Government ramming legislation through Parliament without regard to the House’s own rules. A wide-ranging review of parliamentary time was put forward to the Standing Orders Committee as the way of addressing what critics saw as the comparatively low number of House sitting days that require significant augmentation through the use of urgency.

Submitters to the Standing Orders Committee also recommended that the Speaker be given the role of approving urgency where its use would by-pass select committee consideration, in much the same manner as the Speaker approves the use of extraordinary urgency. [21]   The Committee did not agree. It considered the decision to by-pass select committee consideration a political one that would unnecessarily draw the Speaker into the politics. Its preference was to make changes that provide incentives to use extended sitting hours rather than urgency, and penalise the Government in terms of taking time in the House to debate instructions to select committees that significantly shorten the time available to them to consider bills.

Concerns over lack of legislative capacity have existed over a number of years. Submitters to the Standing Orders Committee drew particular attention to the consequences for technical, non-controversial legislation to remedy existing problems or otherwise maintain and enhance the legislative infrastructure. Not surprisingly governments give priority to major policy reforms in their legislative programmes and as a result non-controversial legislation is often not progressed. The Committee took the view that now there is a very good chance that negotiations in the Business Committee will result in this type of legislation progressing through the use of extended sittings.

The remedies put forward to the Committee were to increase the regular sitting hours of the House and to provide for the committee of the whole House stage to be taken off the floor of the House and for it to sit concurrently with the House. Standing Orders Committees have addressed such proposals before.

Balancing the pressure on members’ time is an important consideration. This Standing Orders Committee preferred to see extensions to the current sitting pattern and better management of House business rather than more regular sitting days. Two extended sittings over Thursday evenings and Friday mornings will equate to a whole extra sitting week in terms of hours for the Government. The Committee considered a Main Committee, akin to that in place in the Australian House of Representatives, an expensive option in the current fiscal climate and acknowledged the difficulties it would place on small parties in terms of presence in the House and the committee. A real difficulty in the 50th Parliament where there are four parties with fewer than six members.

Time will tell whether this carefully balanced approach is successful in achieving more openness and transparency in the legislative process and greater government accountability where it is proposed that the House’s legislative procedures be set aside and bills fast tracked. Much will depend on the way in which the Business Committee works in the new Parliament to manage the business of the House. The Speaker as the chair of the Committee has a large part to play in this. The Chairperson must create an environment in the Business Committee where the Government feels confident to bring forward proposals for the management of its business. In determining such proposals, it is the Chairperson who has the challenge of judging whether, on the basis of party membership in the House, a sufficient degree of support has been reached for the Chair, to be satisfied of the fairness of a proposal to all parties. [22]   In so doing the Speaker has a growing role in ensuring an open and transparent legislative process, a role that must achieve a balance between effective Opposition scrutiny of legislative proposals and reasonable progress for the Government’s legislative programme.

1. Urgency is a procedure available to the Government, (see Standing Orders 55 and 56) whereby it can, on motion without notice, extend a sitting for the purpose of advancing Government business. There are virtually no limits on the business. It may include the introduction and passing of bills, or the passing through the remaining stages of bills. The House sits from 9.00am until midnight each sitting day until the business is concluded or 12 midnight on Saturday is reached. A bill introduced and taken through all stages under urgency does not go to a select committee for consideration.   [back]
2. Standing Order 7   [back]
3. Review of Standing Orders, Report of the Standing Orders Committee, September 2011, I.18B, presented 27 September 2011, http://www.parliament.nz/en-NZ/PB/SC/Documents/Reports/4/a/8/49DBSCH_SCR5302_1-Review-of-the-Standing-Orders-I-18B.htm   [back]
4. Section 242 of the Legislature Act 1908   [back]
5. The submissions received by the Standing Orders Committee on its review are available on the New Zealand Parliament website at http://www.parliament.nz/en-NZ/PB/SC/Documents/Evidence/   [back]
6. The Business Committee is chaired by the Speaker and has membership from every party in the House. It makes its decisions on the basis of unanimity or near unanimity, determined by the Speaker. Standing Oder 77 sets out the Business Committee’s main functions.   [back]
7. Geoffrey Palmer Unbridled Power: An Interpretation of New Zealand’s Constitution and Government Oxford University Press, Wellington 1979, p. 70   [back]
8. Cabinet Manual 2008, Cabinet Office, Department of Prime Minister and Cabinet, paragraphs 7.60 – 7.62, http://www.cabinetmanual.cabinetoffice.govt.nz/   [back]
9. Standing Order 54   [back]
10. Standing Order 55(3)   [back]
11. Since the introduction of MMP, minority Governments have been the norm in New Zealand, governing with the support of smaller parties. These smaller parties have on occasions exercised a degree of restraint on the use of urgency, withdrawing or negotiating their support for government urgency motions. However, this restraint has been patchy and commentators do not consider it an effective accountability mechanism.   [back]
12. Standing Order 266   [back]
13. See http://www.parliament.nz/en-NZ/PB/SC/Details/Business/f/8/2/00SCBU_Determinations20111221_1-Determinations-of-the-Business-Committee.htm   [back]
14. Standing Order 291   [back]
15. New Zealand Bill of Rights Act 1990, s. 7 and Standing Order 262   [back]
16. Cabinet Manual 2008, Cabinet Office, Department of Prime Minister and Cabinet, paragraph 7.32, http://www.cabinetmanual.cabinetoffice.govt.nz/   [back]
17. Standing Order 186(3)   [back]
18. Standing Order 297(3)   [back]
19. Mixed Member Proportional System (MMP)   [back]
20. Urgency was first provided for in the Standing Orders in 1903 and has been a feature of parliamentary procedure since that time.   [back]
21. Standing Order 57 requires the Speaker to agree that the business justifies the taking of extraordinary urgency, which allows the House to continue to sit beyond midnight.   [back]
22. Standing Order 76   [back]

Saturday 25 April, 2009

Here, today, in this small enclave of the Hodogaya Commonwealth War Cemetery in Yokohama, we gather to commemorate those of the Commonwealth who died during the war with Japan and as members of the Jay Force who came to moderate the peace of war’s end.

One we remember is William Brody, 5th Engineer on the NZ – flagged Merchant Navy ship M.V. Hauraki.

Requisitioned by the British War Ministry, the Hauraki was intercepted in the Indian Ocean en route to the Middle East by armed Japanese merchant ships.

The ship’s company of 56 men were mostly New Zealanders. Except for the engineers and the captain, the crew were set down in Singapore and incarcerated for the duration of the war.

The trip to Japan that ensued for the engineers was an example of courage as, with stealth and guile, they dropped overboard essential spare part for the ship’s engines while under the watchful eye of armed guards.  They also set about further debilitating the engines by running them low on essential oil.

They were first set to work on docklands at the Mitsubishi shipyard here in Yokohama, but American bombing of Tokyo in March of 1945 meant the POWs were sent by train to Kamaishi steelworks on the north east coast of Honshu.

On the day the second atomic bomb was dropped on Nagasaki, aircraft flew from American and British air craft carriers and attacked various targets along the coast of Honshu.

Kamaishi was shelled by Allied warships. The POW camp lay between the coast and the steel plant. William Brody was severely wounded, dying on 10 August, 1945 at the age of 30, just five days before the war ended.

Today we commemorate him and his fellow New Zealanders who did not make it back home and who rest here in Japanese soil.

But today they lie in friendly soil for our nations have forged a new future together.

In 1999 New Zealand was a member of the force of the willing, the Australian-led INTERFET operation in East Timor. New Zealand and Australia were both given the task of patrolling and protecting the border with West Timor and preventing incursions across the border the mandate of the United Nations. Japan established and staffed a medical facility in the region supporting the New Zealand contingent.

And our joint efforts in the interest of global peace have continued since then with the Royal New Zealand Navy frigates deployed in support of Operation Enduring Freedom in the Gulf receiving refueling assistance from the Japanese Maritime Self Defence Force.

New Zealand and Japan have formed a close defence and security relationship reflecting our shared interest in the stability, growth and development of the Asia-Pacific region, and, above all its freedom.

I have stood on Chunuk Bair and at Lone Pine on ANZAC Day and seen the tears flow down the cheeks of the thousands who each year make the pilgrimage to Gallipoli, the place where our nationhood and the enduring ANZAC bond was forged.

And those tears are shed not just for the New Zealanders, Australians and Commonwealth soldiers who died there, but for all our peoples who have suffered from the unthinkable calamity of war.

They are the tears of humanity, and while they flow we will never forget. And in those tears lies the promise of freedoms our shared future can bring. Let them never be squandered. Let them never be in vain.

7.00pm, Friday 26 September, 2008

May I first thank the National Centre for Research on Europe for the invitation to participate in this conference aptly named Europe in the Changing World: challenges, priorities and research collaboration.

May I also congratulate Martin and his team on the Annual Review of the Centre. I read it with interest and can see how established the work of the Centre has become in the academic life of New Zealand. I am sure the research conducted by the Centre will contribute to our knowledge of Europe, especially the enlarged Europe.

I have supported the work of the Centre since it was established and I was still working at the University of Waikato. I recall at the time when the information about the Centre first came to us that I thought this is exactly what was needed. It was needed I thought because we often take for granted our understanding and knowledge of Europe and at that time had underestimated the importance of the influence of a united Europe in world affairs. I think there is now a greater understanding, especially since the countries of what we called Eastern Europe have joined the European Union, but we need an authoritative source of information and analysis and that is the Centre.

I also thought at the time and continue to think that we underestimate the influence of the history and culture of Europe on our identity and character. Much of the discussion in recent times has been on New Zealand as a Pacific nation or as being part of Asia. All of this is true and good, but it should never be forgotten that much of our institutions and culture has its roots in Europe also. Europe both looking forward and looking back is important to New Zealand.

It is useful to remind ourselves that the EU is New Zealand’s second largest trading partner and that European countries make up 14 of our 50 top trading partners, with a combined total of around 16% of our merchandise trade.  Also the 27 members of the EU account for 31% of the world’s economic output and purchasing power.  When you add in other European countries, and Russia, you are looking at over a third of the global economy. 

We share a vision for a just, secure and sustainable world and are committed multi-lateralists and therefore cooperate closely on a broad range of international issues. A significant milestone in the New Zealand – EU partnership was the conclusion last September of our Joint Declaration on relations and cooperation. The Declaration outlines the broad range of shared interests covered in our relationship with Europe, which highlighted that we need to engage with the EU on a whole-of-government basis. 

As the Joint Declaration between the European Union and New Zealand points out, in today’s increasingly volatile and complex international environment, the value of dialogue and the exchange of information cannot be underestimated. We welcome the existing twice-yearly bilateral Ministerial Troika consultations. Regular contacts take place between the President of the Commission, the European Union High Representative and the New Zealand Prime Minister – in addition to the regular dialogue between the New Zealand Parliament and the European Parliament. We expect these exchanges to continue on a regular basis.

Opportunities will be sought for further dialogue through bilateral visits at Ministerial and Commissioner level and in the margins of international meetings. This will be supplemented with a regular exchange of information missions and in other fora. High-level visits between New Zealand and European Union institutions, and EU member states, are an important anchor for the relationship. The New Zealand Prime Minister travels frequently to Brussels. The Minister of Foreign Affairs travels to Europe at least every six months for high-level consultations with the holders of the EU Presidency. Other Ministers also travel frequently to EU countries, the recent Speaker’s delegations have gone to European countries, the annual exchanges between the New Zealand Parliament and the European Parliament, and the parliaments of member states, establish and strengthen invaluable links between New Zealand and Europe. Parliamentary friendship groups on both sides also play a vital role in the relationship.

Our relationship with Europe goes beyond trade. It is important to recognise the cultural inheritance we in New Zealand have been gifted by Europe. The settlers in the 19th century were drawn primarily from the United Kingdom and Ireland, but it is important not to forget the French influence was strong, especially through the Catholic missionaries, and the smaller communities who came from Scandinavia, Germany, Dalmatia, Netherlands, Switzerland and many other countries. As pioneers they possessed self-reliance and independence, and an openness to innovation and change that was essential to survival. We like to think that these characteristics have become part of our identity as New Zealanders.

For me one of the most important connections with Europe has been the commitment to democratic decision making. While New Zealand has one of the oldest Parliamentary democracies, it has benefited from democratic movements in Europe in the 18th and 19th centuries. I would argue that we still have much to learn from European constitutional movements as is seen from our MMP electoral system that owes much to the German system. It was for this reason I decided to lead three Speaker’s Delegations to Europe.

I thought this evening I would concentrate on one aspect of our relationship with Europe that is rarely touched on and that is the relationship between Parliaments. It is not well known that Parliament has 8 friendship groups with European Member Parliaments, including the European Parliament. A friendship group is the means by which Members of Parliament can express their individual interest and support for developing a relationship with Parliamentarians from that particular Parliament. They have nothing to do with the executive and are organised by the members themselves but with the support of the Speaker’s Office.

They are essentially informal groups but there has been a recent tendency for some of them to be more active. This activity ranges from engaging with the various missions based in Wellington, to arranging exchanges, to hosting visiting delegations. Many European Parliaments also have New Zealand Friendship groups and I have noted an increased interest in the countries I have visited to form such a group. I have sought to encourage the groups because they enable Members to be better informed about other Parliaments and countries. As a small country at the bottom of the world we need to be constantly aware of what is happening elsewhere. To the credit of most Members I think as a Parliament we are outward looking and there is an understanding of the importance to engage with other Parliamentarians.

As I noted, I have led three cross-party delegations to Europe. The purpose of these has been to affirm the connection between our Parliament, and where there is a friendship group to meet and discuss issues of mutual interest, and where there is no group to seek to ensure one is established. An equally important reason has been to study the electoral system and administration of the Parliament in the countries visited. The reason for this is simple.

Most European Parliaments have some form of MMP government and are of more interest to us in many ways than the Westminster Parliament. I have felt it is important Members of Parliament are familiar with these systems as it is inevitable that at some point we must adapt our form of MMP. For example, I believe a successful electorate Member should only bring other Members into Parliament if they reach the 5% threshold. The other reason I promoted the visits is because Europe is important to our economy and we need to press our case, especially with the recently admitted countries.

It is a matter of record that such delegations receive a bad press. I can only assume it results from residual travel envy by journalists or more accurately their editors. Someone should tell them travel broadens the mind, or maybe that is the problem! I would note that I have approved seven other overseas visits and approved numerous inbound visits from delegations. The New Zealand Parliament is a popular destination because of our Select Committee system and a reputation of innovation in a variety of policy areas.

I thought it may be of interest to relate what happens on these delegations. In 2006 we travelled to the European Parliament in Brussels, and then on to Turkey. We learnt about the operation of the European Parliament in the context of the campaign at the time for Turkey to join the European Union. We were in effect hosted by the very strong and active friendship group that regularly visits the New Zealand Parliament. It quickly became clear that there was a sharp division of opinion within the Parliament on the admission of Turkey, which was the same amongst Turkish Parliamentarians when we visited their Parliament.

The visit was also useful for me because of the somewhat boring, but important issue of the administration of Parliament. I was embarking on a programme of major reform of our Parliament’s entitlements for Members and found the European Parliament also had such issues but on a much larger scale. I am a firm believer that an efficient transparent administration of Parliament is essential for its credibility. There is not enough time to recite what else we learnt in both institutions but it confirmed for me that Turkey is an economy and a country that New Zealand cannot ignore and that there is a great deal of goodwill within its Parliament for New Zealand.

In 2007 the Delegation visited Germany, the Netherlands and Norway. The purpose was primarily to look at their MMP systems, in particular Germany which provided the model for our electoral system. The overwhelming impression from visiting these countries was the increasing demand from citizens to more direct forms of participation within the political system. We could also observe the visible tensions within the ‘grand coalition’ in Germany. It was a useful reminder that all coalitions come at a price and in Germany the price was that some issues were simply placed on the back burner as being just too hard. The observation was also made that the coalition had given political prominence to the political extremes which given Germany’s history was a concern raised by several people.

When it came to this year’s Speaker’s delegation, I confess my choice was largely driven by my interest in learning more about the new enlarged Europe and understanding the role played by Poland, the Czech Republic and Hungary. I rate this as a highly successful visit and given the recent events in Georgia gave us an insight into the issues facing those countries. More specifically we found a great deal of interest in New Zealand and reforms in the agricultural sector. Our visit had followed a large delegation from Poland to New Zealand and a Czech Delegation is here in New Zealand now.

We also noted that while there was an acceptance of the need for these countries to join the European Union to be able to move forward, there was also considerable scepticism about the long term benefits. The Treaty of Lisbon has provided the catalyst for this debate so I felt it was important to continue to watch the debate over ratification of the Treaty after the rejection by Ireland in the recent referendum.

There was also tremendous appreciation for the assistance New Zealand has extended to the citizens of those countries after World War 11, the 1956 Hungarian Uprising, and the 1968 Czech Uprising. As an aside – Peter Brown, a NZ First Member of the delegation, found he was in much demand the day we arrived in Hungary as the junior coalition partner withdrew, leaving Hungary with its first experience of a minority government.

Before I conclude I want to make a few general observations from the visits to Europe on what we learnt about the state of representative Parliaments. As I have said, one of primary purposes of the visits was to study electoral developments and the legislative and administrative processes of the various Parliaments we studied. We were also interested in the level of support for the Treaty of Lisbon and the constitutional union of Europe. While there was widespread support for the economic benefits of the union, with the usual caveats of too much regulation and bureaucracy, there was less enthusiasm for the political and constitutional arrangements. Our last visit was just before the Irish referendum and I had the impression that result may have been repeated in other countries, which maybe explains why in the countries we visited the Parliaments had the authority to make the decision.

This is not the occasion to examine this issue, as I am sure it has been covered during the conference. It was apparent however that there is a malaise infecting the various representative parliamentary democracies. Disappointing low turnouts at elections and an increasing cynicism about politics and governments generally were all repeated to us as concerns by commentators and politicians. An increasing demand for more participation in the decision making process was often heard. The gap between the governors and the governed has become too great and has led to alienation. Parliaments were seen as representing a professional elite and distant from the people they represent. While the individual Parliaments were being urged by some to be more participatory, it was difficult for people to see the relevance of a European Parliament or constitution, which seemed even more remote and of less direct relevance to the lives of the citizens in the constituent countries.

I think this will be a challenge for us all – how to make our Parliaments not only more representative but more participatory. In New Zealand MMP has made our Parliament more representative but I doubt it is seen as more participative. There needs to be a serious re-engagement with the democratic project otherwise we are in danger of losing it. I know there is literature around this issue that explores ways in which to revive citizens’ interest and participation so I shall not pursue the question here. I raise it however to demonstrate the value of increased contact between New Zealand and the European Union. We share a democratic tradition that is in the process of a necessary evolution so we have much to learn from each other.

I feel I have exhausted my time for an after dinner speech. I do appreciate the time you have given me however because it enabled me to provide some assurance that Parliament takes our relationship with the European Union very seriously. New Zealand has a good international image which is in part attributed to the numerous face to face contacts between Members of Parliament and their counterparts in other countries. We take our international obligations seriously and this attracts many overseas Parliaments to visit to learn about our form of democratic government. All this can only be positive for our future.

I am not sure if there is time for questions but if there is I am happy to answer them.

18 September 2008, 6.10 pm

May I thank the Wellington Women Lawyers for the invitation to deliver the Inaugural Shirley Smith Lecture. I regard it as a privilege to be asked to speak in honour of such a distinguished woman, lawyer and citizen. It is difficult to describe how important her example was to so many women entering the legal profession in the 1960s. In 1966, when she was practising law in Wellington, I was one of six young women who entered law school in Auckland. While I did not immediately register the significance of such a large intake of women, (6 out of about 200) it was not long before it had been carefully explained to me that it was highly unusual for women to embark on such a course of study. The comment was also made that if I was lucky enough to get a job, it was such a pity that it would be only in a government department. As I had chosen the study of law to get a job it sounded rather good to me. I totally missed the implied put down, which displayed a provincial naivety that has stood me in good stead for much of my life.

Shirley Smith of course not only had her own practice but she appeared in court, almost unheard of at the time. I recall my first appearance in the then Supreme Court and being kindly counselled that I should try to get in the front row (it was divorce day) because it was well known women’s voices do not carry. I thought I am sure Shirley Smith would have been heard. Of course, given my current role the thought of my voice not being heard is somewhat ironic.

While role model was not a phrase much used then, she epitomised the hope and possibility of women practising in all facets of the law. She not only practised law but also she challenged the profession and the legal system to recognise the rights of women and those who lacked access to law. It is hard to describe the importance of women such as Shirley Smith not only to women entering the legal profession but to the development of our legal system. She was one of those warrior lawyers who struggle to ensure everyone got a fair hearing when pursuing or defending their legal rights.

I confess to undergoing a struggle myself when preparing this lecture. When thinking about what I wanted to say I realised I had several competing ideas that needed to be melded into a coherent presentation. There are two matters however that have recurred for me throughout my legal and political life. They are the importance of the rights of women being recognised legally and politically, and secondly the fundamental importance of the principles of natural justice being adhered to in all circumstances. For me these two matters underpin the legitimacy of our democratic system of government.

I am not sure I have succeeded in the lecture in developing a coherent argument that incorporates these issues. It may therefore be more accurate to describe what follows as some reflections on 30 years of struggle in pursuit of the elusive goal of equality for women. After being a somewhat naïve activist law student in the 1960s, I pursued a career through the teaching and the practice of law, while maintaining a political activism until I entered Parliament in 1999 and became a full time politician. I have been incredibly fortunate to work in so many different sites of struggle for women’s rights and to work with so many women and men who shared the same aspirations. In this journey I have learnt a great deal and not surprisingly developed a few firm views. One of those views is the fundamental importance of the rule of law and the legal system to our democratic political process.

Like most of us I have taken for granted that I live in a country where the rule of law and democratic representative government are taken as the norm. Recently however I have developed an increasing concern that all may not share my confidence. I am beginning to see an insidious undermining of those institutions that underpin our way of life. I do not believe this is due to any great conspiracy but more to the fact that we live in an age when the pre-eminence of the economy is shaping our relationship to institutions such as the law and government. The value of everything is coming to be assessed more in economic terms than any other. The recent book of Robert Reich Supercapitalism (2008) is an excellent analysis of this trend and a plea for a re-assertion of the importance of democratic government for the well being of society as a whole.

I want to begin this talk then by stating that it was of some concern when I read the recent Research New Zealand polling that showed 62% of New Zealanders do not have full trust and confidence in the justice system. [1]   On one level this result was not a surprise because there is little tolerance from a growing section of the community for due process being accorded to those who fall foul of the criminal law. A quick scan of media headline would also convince you that we live in an increasingly lawless society.

The fact that the statistics show a different picture quickly becomes irrelevant in the court of public opinion. [2]   This is not surprising given that people do fear for their safety and it is a fundamental obligation of any state to ensure that security. Not to deliver law and order will lead to a breakdown in society where citizens will take the law into their own hands and violence becomes the norm. There are too many examples of this happening in other countries for us not to understand the risks.

I do not believe New Zealand is anywhere close to that state of affairs. The researchers themselves stressed that ‘full trust and confidence’ does not mean no confidence. The survey did show however that 75% of respondents thought criminal sentences were too soft and 48% supported capital punishment. The lobby groups who advocate these policies are well organised and politically and media astute. It is their right to put their views before the community. There is no obligation however for the media to report the facts and explore the consequences of such policies. That is why strong advocates are required to constantly explain the importance of the rule of law and the fact it is not a vague notion but that it provides the support of all citizens’ human rights. There has been a tendency to equate human rights with political correctness. Yet those who pontificate about political correctness are the beneficiaries of adherence to a human rights regime.

Although the survey related only to the criminal law, I have wondered how much confidence people have in our civil law system. Observing the struggle for compensation over leaky building disputes and the recent collapse of finance companies, I sense a growing concern about the capacity of the legal system to deliver, not only the remedy they seek, but the process to pursue a remedy. I use the term legal system here to include not only the law, but the courts, the bureaucracy and the profession. I want to return later to the problems arising out of the conflict between the need for due process and the need for justice to be timely and efficient.

I wish now however to discuss some of the issues and questions that arose when in the 1970s, 1980s and 1990s women challenged the legal and political systems to recognise and include them. [3]   I see this struggle as an example of how change is possible through participation in the democratic process, even if it is very slow at times. I also came to realise as I wrote this talk that equality for women is only possible through a viable active democratic system of government hence my advocacy for it to be supported.

From time to time in recent history movements have arisen to promote the equality of women. New Zealand was the beneficiary of such a movement in the 1890s when it resulted in women being given the right to vote. Another such time was the 1960s and 1970s when the post World War Two generation of women asserted their right to equality. It was an important time for so many women who experienced their life opportunities being curtailed simply because they had been born a woman. It seemed so fundamentally unfair and undemocratic that for some us there seemed no option but to try and change the system that supported this discrimination.

What strikes me when I reflect on my involvement in the campaigns for women’s rights in the 1970s is that my focus was on changing the law to provide women with rights and remedies. I was aware not all feminists pursued a strategy of working within the system because their analysis demonstrated the fundamental social, economic and cultural factors that denied women full equality. I had much sympathy with this analysis and still do. It seemed to me however that there was an obligation to at least try to work through the system, which for me meant the legal and political system, until it was obvious no progress could be made. In other words we were testing the democratic process to see if it could deliver true equality for women.

Whether it has or has not delivered is a serious question that deserves consideration. The answer for individual women will depend on their individual life experience to some extent. For me looking at the changes over the past 30 years, I think it is fair to say that real progress has been made but we still have a way to go. I believe that there has been progress in the formal legal recognition of the rights of women, but that in reality women are now squarely facing the underlying structural barriers to full equality. It is fair to note that from the outset we were aware legal change was not the total answer. It had to be supported by an attitudinal change, and more importantly social and economic policies to ensure the law was implemented as intended.

The agenda for change was set out in the 1975 Select Committee Report on the Role of Women in New Zealand Society. It identified equal employment opportunity, matrimonial property, access to finance, the rape laws, and contraception sterilisation and abortion as arenas for change. These were the issues identified by women and their organizations such as the Campaign Against Discrimination. Interestingly violence experienced by women was not identified. I suspect this was because the issue was still too personal and difficult to articulate in the Select Committee process.

The Select Committee provided the first opportunity for women to learn about political lobbying. We learnt to prepare and to present submissions to Parliament. Much of the research for those submissions was provided by the work of the Society for the Research on Women. It played a significant role in preparing the rational reasoned arguments for those of us who then took them into the social and political marketplace. It was during this time we formed the Women and the Law Research Foundation that provided information, research and assisted women with accessing the political process to lobby for change. We lobbied, we argued, we demonstrated and eventually we realised we needed to be where the decisions were made – the Parliament, the courts, the practices, the classrooms. Good argument and research alone did not guarantee action.

The campaigns of the 1960s and 1970s were about creating the community awareness and acceptance of the need for change. The United Women’s Conventions of the 1970s played a significant role. The Conventions held over a decade in different cities gave the opportunity for women to come together to share their experiences and to develop a programme and a strategy for change. It must be noted there were many differences expressed passionately and not always rationally.

I recall being asked to speak at the first Convention on women and employment and to convene workshops on women and the law. I had no idea of the significance of that gathering or how challenging it would be for me personally. For example I vividly recall being confronted by two women demanding to know whose rights should prevail on the breakdown of a marriage – the first or the second wife. Nothing in law school had prepared me to answer this question. The experience however provoked me to look at matrimonial property rights in a new way.

The Conventions were also about women learning how the legal and political system worked. On reflection I see that all this activity displayed a confidence in our democratic system that it would eventually produce the justice sought. We understood that societal change and political struggle had to precede legal change. We were prepared to put the work in to affect that change. To be honest however, I doubt any of us thought it would take over 30 years of action to achieve what we have today.

Much of the effectiveness of the campaigns relied on an analysis of the precise nature of the issue and the most effective means for addressing it. For example, there could be no solution to unequal pay for women unless it was accepted that pay rates were determined within the context of the then industrial conciliation and arbitration system. A law change alone would therefore affect little unless union and employer advocates were prepared to ensure the law was enforced. Even with those conditions, it became obvious that the real problem was that the work women undertook was undervalued in the economy. Further the labour market was unprepared to cope with the reality of the rhythm of women’s working lives, in particular their child care responsibilities. These are the underlying structural issues that still remain today.

The struggle to integrate pay equity into the labour market failed in the face of the neo-liberal economic policies of the 1990s. The failure of the pay equity initiatives demonstrated that women were not central to the economic system. We had always been a dispensable surplus workforce and there was no support to change that in the 1990s. This meant that a new strategy had to be developed which did not attack the issue of value head-on but which addressed the factors that contributed to the undervaluing of women’s work. These factors most often related to the fact that women’s life experience is different from that of men in some fundamental respects.

The struggle has been to get not only the law to recognise that equality before the law requires an acknowledgement of difference, but then to get those who interpret or apply the law to recognise the equality of difference. Equal employment opportunity, paid parental leave, flexible working hours, the right to breast feed at work, work/life balance were amongst the policies that were now pursued in law and practice.

I have a concern that these policies have had some measure of success because we have had a policy of full employment and not because there is an acceptance of the rights of women’s difference. In other words the conditions were right because there was a need for women’s labour. The true test of these policies will lie in whether they survive a period of high unemployment. And this will depend on whether the economic necessity is supported by a fundamental shift in social and cultural attitudes.

When devising the strategy for employment equity, I recognised the legal system was not equipped to deal with systemic discrimination. It was unrealistic to expect the courts to deliver a change of this nature. The courts were best equipped to deal with individual disputes, for example, who was entitled to what property on the breakdown of a marriage. I must note however when attempts were made to change the law to ensure women’s non-financial contribution to matrimonial property was recognised, both the bureaucracy and the courts were very reluctant again to acknowledge the value of women’s work.

The struggle around women’s matrimonial property rights has clearly identified that the legal system is still much more comfortable in enforcing financial value, normally associated with the exchange of money and not non-financial services. The fact that men have been associated with financial exchanges and women with non-financial service exchange has lead to the development of the law through the male experience. What women have been seeking again is that women’s experience should be equally recognised by the law as of value. In other words, for the law to be truly equal it must acknowledge the difference of women. It is the social and cultural imbedding of the notion of traditional roles for men and women that has made political and legal change so difficult.

In my legal policy work it has also become obvious that the courts should not be viewed as instruments of social change. Their role is to enforce the law as enacted in legislation. Through the interpretation of the law, a common law is created that provides guidance to individuals who seek to know and enforce their legal rights and remedies. As it was unrealistic to expect the courts to deliver gender equality, it was important that those of us working on legal change in the 1970s devised a new legal instrument to redress systemic discrimination.

The Human Rights Commission emerged as the institution to achieve this goal. It was not the first choice however. We had examined overseas statutory models and judged that Australia had the best legislation to address sex discrimination. We also sought an institution that would provide an individual remedy while also addressing structural systemic discrimination against women. We knew it was impossible to mount a class action in the courts so were trying to find a way where the new institution would accommodate such an approach.

A change of government in 1975 ensured there was no body to deal specifically with sex discrimination. The notion of human rights was used to neutralise the demands of women at the time. The Commission had jurisdiction over discrimination on the grounds of sex, marital status, religious and ethical belief – a limited notion of human rights. The fact that the Commission was reluctant to pursue sex and marital status discrimination against women and concentrated on religious discrimination meant it lost the confidence of many women for some years. I confess that after my first meeting with the Commission, I wondered if the struggle was worth it.

There is not time to traverse the history of the Commission except to note that it was an important first step from which we were able over a period of time to build an institutional base that directly addressed the issue of discrimination against women. It should be acknowledged however that it was the recognition of women’s rights as being human rights in the 1990s that gave new energy to the campaign for women’s rights. Participation in international conferences such as the Beijing International Women’s Conference enabled the campaign for women’s rights to be sustained during a particularly bleak period. And the Human Rights Commission today comes close to the model that was sought in the 1970s, in that it not only provides for the redress of individual complaints but pursues an active campaign to protect and advance women’s rights in the context of human rights. It is not so easy now to isolate and ignore the rights of women.

Time was lost in the 1970s and 1980s however though experience was gained. It became clear to me at that time that I needed more experience in legal institutional design if the right formula could be found to provide a real remedy for women. It was why I fought so strongly for issues relating to maternity leave, that arose from the Maternity Leave and Employment Protection Act 1978, being heard in the then Industrial Court. It seemed that that court had a greater understanding of the realities of the workplace and therefore may have a greater chance of enforcing the limited rights they gained under that Act. For me also that experience taught me the power and influence of the bureaucracy and how difficult it was for women outside the public service and politics to have any influence on the form and shape of legislation. I learnt that the devil really does lie in the detail.

It was during this period of the 1980s I committed to finding a pathway through the political process. One of the reasons for the commitment was a realisation that single issue lobby groups and organizations took a great deal of energy and were difficult to sustain. There was little financial support and too few people to do the work. Working for women through the Labour Party seemed a logical extension of the NGO work in which I had been involved. I, and others, had been part of a strategy to develop a women’s equality policy and also to promote women into political decision-making positions.

The policy work resulted in the 1984 Women’s Equality Policy of the Labour Party set out what in effect became the agenda for the next 20 years. It was during this period that I also learnt to live with contradiction in a real sense. While the government was pursuing a neo-liberal agenda we were pursuing an equality agenda. There is insufficient time to relate this story but the conclusion may be that you should never give up however difficult the task may be at the time. It also had confirmed for me that women had to be where decisions were made because their voice and vote counted.

It is true that women have learnt from experience and taken advantage of the opportunities that were not easily available to us 30 years ago. Women have entered the paid workforce in increasing numbers and are facing the daily struggle of balancing our paid and unpaid work in a world that in truth has changed little to accommodate this major social change. It is therefore time to reflect on exactly how much progress has been made and where do we go from here.

The reality is that while there is a perception that women have ‘made it’ the statistics tell a different story. The power of perception to undermine reality should never be underestimated. A good example of this is the way we are good at claiming ‘firsts’ into the resolution of the problem.

New Zealand has always been proud of being the first country to give women the right to vote. We were not the first however to give women the right to represent themselves in Parliament. That first belongs to Finland. It was also not until 1933 that the first woman Elizabeth McCombs was elected to Parliament, and it was not until the mid 1990s that women in any numbers were elected to Parliament – a hundred years after women got the vote. [4]  

Ethel Benjamin was our first woman admitted to the legal profession in 1897. [5]   Yet it took until the 1970s before women in any numbers started to enter the practice of law. [6]   Women were first appointed to the bench in 1975 with Augusta Wallace’s appointment to the District Court and 18 years later in 1993 Silvia Cartwright was appointed to the High Court. Both appointments were considered exceptional and coincided with International Women’s Year in 1975 and the Suffrage Centennial Year in 1993. I am pleased to say the events based approach to judicial appointment for women has not continued. It is obvious however there has been no floodgates principle operating as far as women entering the legal profession or the judiciary.

What is the position today? The Human Rights Commission has recently published a census of women’s participation in New Zealand society, including participation in the law. [7]   Women currently comprise 62% of the admissions to the profession but comprise only 41% of the legal profession. Only 16.8% are partners in large law firms, and 19.34% of the partners in firms of all sizes. 35% of barrister sole are women and of the 90 practising Queens Counsel, 11 are women. Women comprise 25.76% of judges with the highest percentage being appointed to the Family Court.

So what do these numbers tell us? It is obvious that some progress has been made over the past 110 years but that women are still a minority at all levels of the profession and the judiciary. Is this a cause for concern may be the next question? I would argue that it is. Apart from the waste of human potential and sense of loss of well being, the country suffers from the loss of talent and skills that women could contribute through their employment. I sometimes wonder when I hear the critiques of why New Zealand has such low productivity why there is no recognition of the harmful effects of discriminatory management practices.

The new challenge for women in legal practice would appear to lie in the current management practices of firms and appointment practices rather than changes to the law. In 2005 the New Zealand Law Society conducted a survey that sought to identify the key concerns of women practitioners. [8]   The four most significant concerns were reported as hours of work, professional support, advancement and salary. Men also expressed a concern about hours of work and salary but they did not have the same concerns around advancement or professional support. The Chief Justice in a recent address to the Australian Women Lawyers Conference discusses the current legal culture that inhibits the advancement of women in legal practice and the judiciary. [9]   She notes there is a reluctance to accommodate the needs of women and men who want different work patterns and styles. Even when there is an accommodation there remains a stigma attached to those who seek to be different.

Unfortunately there is another management practice that has failed to assist women and that is the notion of merit being the basis for appointment or advancement. I recall the debates around whether or not New Zealand should adopt affirmative action strategies in the 1970s and 1980s to redress the discrimination experienced by women. Those strategies were rejected and reliance was placed on a merit approach to ensure women were treated fairly. It was felt that the merit approach was fairer and would be more culturally acceptable. The problem with merit is that it is in the eye of the beholder and unless an incredibly professional process is undertaken, merit cannot be relied on to produce a fair outcome. Where there is a strong prevailing notion of what are the ‘right’ qualities for a position, it is difficult to introduce any change. I found this was particularly the case with judicial appointments and appointments to Queens Counsel.

I believe there is a fundamental clash between much of the current legal culture and the reality of women’s lives. I would note however there are a number of men who are also experiencing a similar frustration at the resistance to change. The question what is to be done? I do not have an answer though I hope to continue my work on this issue. What I do sense however is that there is a real shift within the community towards demanding a greater participation in the decisions that affect us. We are searching for new ways of organising our lives and governing ourselves. Women are seeking ways of work that enable a better balance in their lives. There is a greater sharing of roles between men and women. These initiatives are still taking place within the existing system however. There is still no real perceived need to radically change the way we do things. Difference is tolerated as long as it does not fundamentally interfere with existing practices.

I want to conclude with the thought that it is imperative that the changes within the society are reflected within the legal system. I note the new practices introduced by the Law Society to better recognise the needs of clients to be well informed, and to better supervise the quality of the provision of legal services. I also note attempts to ensure judicial and quasi-judicial bodies to be more representative of the community they serve. These are all important measures. I would argue however that there is a need to review the means by which we resolve disputes and administer the justice system. It is not just a question of more money for legal aid, better court facilitates and more judges though I understand such measures would undoubtedly be of assistance.

It is a question of ensuring that due process and the principles of natural justice that are the foundations of the rule of law are designed to deliver justice in a timely manner and a way that meets the needs of those who seek justice. The increasing procedural complexity of our litigation processes is in danger of strangling the life out of this form of dispute resolution for all but the rich. I sometimes wonder if we have become so risk adverse that we are not really serving our clients. I am very much aware however of the financial risks for practitioners of not covering all contingencies. Just as I am aware that issues involving the Bill of Rights require exhaustive testing in the courts. The question may be does every dispute require this attention. I am not suggesting there are easy answers however.

It is time to think creatively about how the system can better serve the needs of people so we can ensure any future surveys convey higher confidence levels in the legal system. I know such means are available, as I have had the opportunity when I was a Minister to test them in some areas such as employment, building, and human rights disputes processes. [10]   Greater use of both mediation and adjudication should be explored. Often what is required is an experienced practitioner to weigh the arguments and work with the parties to a solution that meets their needs. Of course this will not work in all cases and access to the courts should never be denied. Some clients require the full litigation for legal or personal reasons. There should be choices however.

There is not time to pursue these matters in this lecture but I am sure Shirley Smith would have had a great deal to say about them. She believed passionately in the rule of law, as I do and I am sure you all do also. The continuance of the rule of law will be one of the main challenges for us in the future. Our democratic system of government depends on the maintenance of confidence in the rule of law and our legal system. As a profession we have a particular responsibility in this task. We will be unable to meet that challenge unless as a profession and a judiciary we are inclusive and representative of our community and that is why it is vital women can fully participate at all levels and in all facets of the legal system.

Thank you.

18 September 2008

It is with great pleasure that I welcome you here today. I find it particularly rewarding to know that leaders such as yourselves take time out from your roles for professional development. Not only that, I am impressed, and relieved, that you recognise the importance of understanding this place called ‘Wellington’ – with all its processes, formality and indeed a person called Madam Speaker.

I understand that many of you come from commercial environments. And I know that in your worlds, politics is often a distant, strange and irrelevant sideshow.

But beyond the sideshows, are the processes of law-making and governing. And it is these processes that can reach very quickly into commercial boardrooms and impact directly on business. This is why ‘Wellington’ is important for you, as leaders, to know and understand.

It is from the Parliament – the House of Representatives, that a Government or Executive is formed. And it is the Parliament’s role to make new laws, update old laws and examine and approve Government taxes and spending. Parliament’s role is to hold the Government to account for its policies and its actions.

At its heart it represents the people. It is here that the issues of the day and the concerns of the nation are aired – be they the death of Sir Edmund Hillary, the great feats of our Olympians or a failure in our 111 system.

As Speaker of the House of Representatives, I perform a number of roles.

There is a ceremonial role – it is the Speaker who represents the House in communications with the Crown. The Speaker also chairs meetings of the House, chairs three Parliamentary Select Committees and is the effective landlord of Parliament’s buildings.

It is as the chair of meetings of the House that the Speaker is most often seen at work. It is the Speaker who ensures the rules of the House, called Standing Orders, are being observed correctly.

It is a tough and rigorous role. I must confess that I am looking forward to the days, in the not too distant future, when I will no longer have to call for ‘order.’

Like all roles involving leadership it is not an easy one and it is open to constant challenge. It is in such circumstances that the qualities of leadership are so important.

I recently spoke to a Commerce Commission conference on the subject of leadership. Given that the Commission is an official entity but acutely relevant to business, I thought my comments on leadership to that audience may interest you.

Leadership is a key focus of the Commission’s Statement of Intent for 2008-2011. Underpinning its leadership strategy are the core values of the Commission - integrity, responsibility, and respect. Independence, professionalism and transparency underlie those core values.

I agree with this approach to leadership. But for me, it must at all times be supported by communications.

I am aware there is much criticism of the role of communication in the public sector. I see good communication as essential to an understanding of the role of the Commerce Commission, and in fact, the wider public service. If education has a role in leadership then communication is essential to that process. We live in a world where unfortunately perception is often taken for, or even worse, becomes reality. Good professional communications ensure an accurate message is conveyed to an audience that can comprehend it. Maybe it is the teacher in me talking here, but leadership is about the ability to communicate. Of course good communication can only work if there is a clearly thought through message, which simply means there is no substitute for knowing what you are talking about.

The invitation to talk to you today suggested I might speak on my own experience of leadership.

I must observe at the outset that leadership was not a notion I entertained when I was younger. This was not only because women did not have public leadership roles, unless it was to reinforce the ideal of women as wife and mother. It was also because leadership was associated with an institutional role. Those who held public office were automatically accorded a status that was supported by the institution. The churches also provided a leadership in a way that is no longer apparent. Business leaders were identified with an established company or more likely an entrenched lobby group – Federated Farmers, the Employers’ Federation. Leadership in sport was more individualistic unless you captained the All Blacks, when then as now, the well being of the psych of the nation seemed to depend on you. Judges, academics, teachers, doctors were associated with a professional leadership that depended on the status of their profession, though their influence in the community extended beyond their profession.

I was part of that generation that questioned the authority and therefore the status of those institutions. I doubt we really knew what we were doing except we wanted things to change. For many of us it was about gaining opportunities denied to previous generations. The opportunities afforded through education provided a pathway which we took advantage of in large numbers. The leadership given by the established institutions no longer held the same authority. Individualism became a new form of leadership, as the freedom to experiment was given to the post World War II generation.

The changes in technology provided access to many to influence many more. Post modernism questioned the sense in trusting anyone or anything and contributed to the decline of traditional leadership institutions and models. The neo-liberal policies of the 1980s and 1990s further undermined trust in political institutions, and without trust it is difficult to have leadership. It also broke the trust in the market for a generation and impeded New Zealand’s investment growth. Without acknowledged institutions to provide leadership, individuals had to rely on those qualities themselves.

I observed that during the 90s there appeared a renewed interest in leadership, often led by the business schools and their publications. This literature has increased, as have the number of leadership courses and programmes. The vacuum left by the churches, political institutions, and the professions is being filled by what may be termed the democratisation of leadership. The emphasis is now on the qualities of leadership and not on the position or status of leadership. I consider this a positive development. It is positive because hopefully it means more people will understand not only the qualities of leadership but also the responsibilities that accompany the exercise of that leadership. Increasingly leadership qualities are recognised at all levels of an organisation. This approach recognises that leadership is relevant throughout the organization and does not reside in one person or group.

While I have lived through this changing notion of leadership, I confess I was unaware of it. Leadership was not a role I sought or even considered. The reason is simple. I was still working within the traditional paradigm of leadership, namely, that it existed only within the traditional institutions. It was apparent early in my career that there were few opportunities for women in law or academia. In a way that was liberating because you had little to lose by pursuing your own path. You took risks because there was less to lose.

I explored the use of the media to communicate a point of view that was not generally accepted – whether it was on the rights of workers or equal opportunities for women. I learnt there were consequences for disturbing the status quo but because there was so little to lose the opinions and threats of others, while noted, did not deter. I did not consider myself in a leadership role and this was partly because I had little accountability. I had a professional responsibility to express views that were factual and defensible, but I answered to nobody but myself. It was not until I stood for a position on the Labour Party’s policy council that I had a representative role that required a responsibility to report to others, and to reflect their views. In a sense I was undertaking a traditional leadership role. It was not only responsibility for me but for others. I learnt enormously through those Party roles that included Junior Vice President and President. Mostly I learnt the responsibility of leadership. I also learnt that without trust it is impossible to undertake a leadership role effectively. This meant trusting me and trusting others. I learnt an essential element of trust was acting with integrity and expecting others to do the same.

When I was appointed foundation Dean of the Waikato University School of Law, I learnt a different form of leadership. Whereas a political party requires a high level of discipline and accountability to a range of different people within the organization, the university operates differently. There is a greater level of autonomy without the necessary support. Perhaps the best advice I got was that there was no point seeking advice on what was permissible or not, I should just do it and I would be told if I got it wrong. I do not recommend this form of management but am sure it has changed.

I would rate the experience as Dean my most difficult and testing time in a leadership role. When I was hired the University had $10 million to fund the School, and within the first six months I had hired a dozen staff and received applications from over 1000 students seeking one of the 190 places. With the change of government at the end of 1990, the $10 million budget disappeared and it was made clear by the government that the project should not proceed. With the support of the Vice Chancellor at the time, we decided it should proceed. The demand was there and while it would be hard without the capital fund, we still had an income stream so decided to continue on. I would rate that one of my tougher decisions because it would have been so easy to walk away with a redundancy payment. It just did not seem the right thing to do and once we worked out it could still be financially viable, we proceeded and the School is thriving today.

Perhaps an even harder decision during that period was writing the prescription for the degree programme and arguing for its approval by the Council of Legal Education, on which sat all the School’s competitors. Unfortunately there was no Commerce Commission to appeal to at that time, though I recall threatening such an action at one point. What I learnt through that process however was to rely on the leadership of others who supported the project and skilfully helped me present and argue the case.

It is difficult for me to talk about my experience as a Minister while I have my current role. I can say that it presented many challenges from which I learnt a great deal about others and myself. As a Cabinet Minister you have a collective responsibility, so you have the task of not only exercising leadership qualities in your own areas of responsibility, but also often trying to persuade your colleagues to your point of view. I also learnt that through listening to others it is possible to find a new approach without compromising your principles or policy commitments. In this context, leadership was often exercised through finding a solution to a problem and then making it happen.

The role of Speaker has produced a different set of challenges. It is a role that has all the responsibility but none of the supports other Members of Parliament have access to. Leadership is exercised through one’s own authority and the goodwill of Members. While in leadership terms, the role of Speaker ranks third in terms of constitutional status, its authority and status is dependent on the respect with which the public hold the institution of Parliament. In my time as Speaker I have endeavoured to make the Parliament more accessible through the televising of Parliament, and through ensuring its administrative processes are efficient and transparent.

Again I come back to communication.

The more people who understand that Parliament is more than question time, the greater awareness will be of how fortunate we are as a people to have such a democratic representative decision making institution. It is easy to take for granted how accountable our Parliament is compared with many others.

In conclusion I would note that I am often asked if there is a difference between male and female leadership. This is a subject that requires more attention than I can give it today. I would observe however that I do not think the qualities for leadership are different but the way leadership is exercised is often different. We are all influenced by our environment and experience. Men and women are seen and are treated differently. This is often unconscious and frequently denied but in my experience is true. It appears to be no longer fashionable to examine seriously gender difference. I think this is a mistake because we need to fully understand and celebrate the difference. In the context of leadership, there is no one form or expression of leadership. Different situations require different leadership. We need to concentrate on what is required for the position, not on whether a man or a woman has the right leadership skills. It is our lack of understanding of the requirements of leadership that inhibits women being able to fully contribute to institutional leadership. In a country of just over four million people, we cannot afford to be blinkered to the full participation of women in all roles including leadership.

May I thank you for the opportunity to address you today. May I also challenge you to continue your engagement with this Parliament and in your pursuit of good leadership.

6.15pm Wednesday 10 September 2008

Former Speakers of the House and chairs of the Library Committee,

The Honourable Jonathan Hunt and the Honourable Doug Kidd.

Members of Parliament.

Clerk of the House, Mary Harris and her predecessor David McGee.

General Manager of Parliamentary Service, Geoff Thorn and his predecessors Peter Brookes and John O’Sullivan.

Senior public servants, the library community, parliamentary staff and distinguished guests.

We are here this evening for one of Parliament’s special occasions that serves to remind us all of the great vision, commitment and belief our forebears had in this institution.

This month marks the 150th anniversary of the appointment of the Parliamentary Library’s first librarian. Captain F.E Campbell, Clerk of the House, was appointed librarian on the 20th of September 1858. Ever since that time, the Parliamentary Library has played a vital role in supporting representative and parliamentary democracy.

Since 1858 the Parliamentary Library’s role has been to provide information to Parliament.

However, not quite as we know it today.

In its early days it was more of a private gentleman’s Library with open fires, writing desks, comfy chairs and a liberal attitude to smoking indoors.

Through the 19th and 20th centuries the Library became a true treasure house including rare books and artworks. I note that it took until the end of the 19th century for the Library to be housed in a fire-resistant building.

Having information in the Library was never enough – parliamentarians needed the assistance of experts to retrieve accurate information efficiently and promptly.

I expect that over a century and a half the idea of promptness has changed significantly. Today a Member may not simply require accurate and impartial information but he or she may require it in 10 minutes flat.

And I can say that the 60 full-time library staff with specialist research and analytical skills regularly deliver in that time frame, as well as with extended searches which can take weeks. As many as 15-hundred searches are completed every month.

However, given my time in the Chair, I can vouch for the fact that the Library is no longer asked, as it was in the past, for fine literature and classical references to embellish Members speeches.

A 150 year tradition of providing top-quality information is both a responsibility and a challenge for those who have built on the early ambitions for the Parliamentary Library.

It is the book we launch today that chronicles the challenge that our librarians have met and continue to meet.

These challenges have been enormous. During its 150 years the Library has survived shipwreck, fires and destruction by water. I can only imagine the heartbreak librarians have suffered over the years.

Today we are joined by retired Chief Librarians Hillas MacLean and Ian Matheson and former acting Parliamentary Librarian Ruth MacEachern. It is thanks to your efforts and dedication and that of your colleagues that we have the Library we have today.

Over the years, my colleagues have acknowledged the work of the Library.

In 2000, my predecessor Jonathan Hunt described the Library as the “best of its type in the Commonwealth.” [1]   In that same year MP Jill Pettis urged her colleagues to use the Library saying “it is free and the library staff are always very happy to be helpful.” [2]  

MP the Honourable Richard Prebble acknowledged this in 2003 when he referred to research he commissioned from the Library over the summer. He described it as a “very reliable and reputable source.” [3]  

To maintain this reputation, the Library has had to move with the times.

Our current Parliamentary Librarian, Moira Fraser, has overseen a rapid transformation in the last few years.

Thanks to Google we can all sit at our desks and undertake our own research. It is when we get stuck that we now turn to the expertise of the Parliamentary Library.

Under Moira’s leadership the Parliamentary Library has positioned itself for the 21st century and the demands and expectations of Members.

The Library is now an electronic powerhouse working in all fields of the media.

Housed in a splendid Gothic building it is a wonderful blend of past, present and future. Analysts and researchers undertake detailed searches through the world’s best data bases while surrounded by handsome leather-bound and gilt embossed books lined up on historic steel shelving.

The book launched today captures this history and sense of evolution.

Parliament’s Library – 150 years has been written by Parliamentary Historian Dr John E Martin. I congratulate you and the library staff on this publication.

This book conveys the struggles involved in advancing the library. For anyone with an interest in the history of our country, in Parliament and in books it cleverly draws you in with a rich mix of images and stories. But as we would expect of Dr Martin and our library, all this is supported by facts and fine detail.

The book is complemented by a pull-out timeline which captures the history of the Library in four visually appealing pages.

It is a fitting commemoration of the Library’s 150 years. And it leaves me wondering just how our Parliamentary Library will evolve in the future and what it will be providing Members in the decades ahead.

I now formally launch Parliament’s Library – 150 years.