An Oral Submission

Reflections of an Appearance Before the Justice Select Committee on the Treaty Principles Bill

On 30 January I appeared before the Justice Select Committee in support of my submission regarding the Treaty Principles Bill.

I have already posted a copy of my submissions which may be found here.

The submissions are recorded and made available here.

It may well be that readers might like to take advantage of the opportunity to see the Select Committee in action.

However, for those who are more interested in my own experience before the Select Committee I have edited the video and it is below.

Readers may be interested in my reaction to the experience.

From a general point of view it was not surprise that members of the Labour and Te Pati Maori Parties used the process as an opportunity to engage in rhetoric and ad hominem comments. The problem with this was that often the question – if indeed there was one – was concealed beneath a barrage of commentary and invective which seemed to be more ideological than anything else.

Turning now to some of the individuals involved. Mr. Willie Jackson regaled me with the fact that my point of view was “out of sync” with those of leaders of the legal profession, former Cabinet Ministers and the like. He suggested, for example, that Kings Counsel did not support the Bill. That was incorrect. 42 KCs registered their opposition to the Bill. On the other hand, one, Mr Gary Judd KC, made a submission in favour of the Bill. Perhaps Mr. Jackson missed that. But he was embarking on the fallacy of the appeal to authority without actually articulating why they were correct. Interesting too that with one exception – Mr Finlayson KC – none of the other KCs have as yet been before the Committee and had their ideas tested.

Indeed Mr Finlayson argued for example about the fact that although Parliament may state in legislation that there is no such thing as climate change, that did not make it so. I reminded Mr Jackson that Mr Finlayson had overlooked the fact that every six months, time changes as we move between Daylight Saving and Standard Time. Or perhaps Mr Finlayson hasn’t checked his watch lately.

But as to being “out of sync” that did not bother me one whit. Just because a number of others say thus is so does not mean that I must blindly follow although Mr Jackson with his Left Wing Collectivist perspective would think that must follow. I will agree with the majority point of view if reason tells me it is valid. I am unconvinced by the rhetoric so far.

The next question – if I can call it that – came from the Co-Leader of the Maori Party, Rawiri Waititi.

He picked up on a comment I made about the words on the entablature of the US Supreme Court building – equal justice under law. He then segued off into a discussion (no question so far) about the US Civil Rights Movement which he said started in 1954 and ran to 1968.

That was when in December 1955 Rosa Parks refused to give up her seat on a bus to a white man and was the main catalyst for the movement. But action by the NAACP and the Southern Christian Leadership Conference predated that. Thurgood Marshall argued Brown v Board of Education which began in 1951. The case was argued twice before the US Supreme Court before it delivered its decision in May 1954.

Most US history books suggest that the movement began in 1954 with the Brown case and ended in 1965 with the passage of the Voting Rights Act. I was living in the US in 1964 when Congress passed the Civil Rights Act which forbade discrimination on the basis of sex as well as, race in hiring, promoting, and firing.

I am not sure where Mr. Waititi was going with that remark.

Then he discussed the terrible statistics of Maori coming before the Courts. As if I was not familiar with that. The only problem was that he turned that into an ad hominem attack by obliquely inferring after my presentation he could understand why the statistics are so appalling. It seems as far as Mr. Waititi is concerned I am responsible for Maori incarceration rates.

It took some effort to try and refocus the discussion on my submission and Mr. Waititi unwittingly threw me a lifeline when he asked if I respected the Rule of Law and thirty to forty years of Treaty jurisprudence.

It seems that Mr. Waititi prefers the use of insult and veiled negative inference and invective in his approach and clearly did not understand the submission I was making – if indeed he had read it. As to the Rule of Law, it almost goes without saying that it has been a beacon throughout my professional life. As to jurisprudence he was unaware that my argument folded that jurisprudence into the proposals of the Bill. And as to my treatment of those who came before me I know that I had a reputation for fairness and an understanding of the onus and burden of proof. Ask lawyers who appeared before me.

Finally Dr. Duncan Webb seemed to go off on a tangent about high numbers of Maori appearing in Court and the value of cultural reports.

Clearly he was unaware of my opposition to the restrictions on available discounts that have been introduced. Clearly he was unaware of the extensive studies and the development of statistical data that I had undertaken surrounding section 27 cultural reports and that I opposed the withdrawal of legal aid for the funding of those reports.

The concern that I voiced was that successive Governments have failed to properly and co-operatively address the solution to the problem of the high number of Maori appearing in the criminal courts, unaware of the fact that the solution is not something to be achieved in a year or even three but is a multi-generational problem that will require a concerted effort over decades.

But by then my time had run out.

Was it a useful experience – yes it was. Did I learn anything from it – indeed but I would have hoped that a more considered and rational approach had been developed, addressing the arguments that I had put forward. I was looking forward to having my theory tested and was a bit disappointed it was not. And clearly the three who questioned me had not done proper preparation. If they had done so the conversation might have been more productive.