Otago Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Otago Law Review |
|
Last Updated: 12 May 2021
257
Nurturing Tradition in Dunedin: Courthouses, Lawyers, and Justice
Jane Adams and Bridgette Toy-Cronin
All of us have learnt to regard Dunedin as the nursery of our profession. And more important still, the highest traditions of the profession were cradled and nurtured in this city. Here, too, from the earliest days, have practised some of the greatest men who have adorned the Bench and Bar of New Zealand. Their names form a galaxy of stars in our legal firmament.1
I Introduction
On 26 January 2018, the Dunedin Law Courts (DLC) re-opened its doors after extensive earthquake strengthening. The occasion was celebrated with events throughout the day, including a procession through the town centre and ceremonial sitting of the court. Both authors attended the festivities but not before a lively discussion arose about the meaning and purpose of the occasion. The discussion arose, in part, because of our different backgrounds. We are both Pākehā and come from different parts of Aotearoa. Jane Adams was born and raised in Southland, was educated at the University of Otago and practised law in Dunedin (as well as Melbourne). Her other academic discipline, in addition to law, is History. She had attended the re-opening of the DLC in 2003 and was aware of the previous processions and opening ceremonies. Bridgette Toy-Cronin hails from the North Island, studied law and social sciences, and practised law in the North Island and abroad. The invitation to attend the 2018 re-opening was her first encounter with a city procession of the legal profession. This article takes up the discussion, using the DLC 2018 re-opening as a case study to examine the role of the courthouse in the life of a city, the legal profession, and in Aotearoa’s twenty first century justice system.
To do so, the article draws on a range of methods from the authors’ different academic backgrounds in social sciences (Toy-Cronin) and humanities (Adams), including historical analysis of published primary
* Dr Jane Adams is a Postdoctoral Fellow with the University of Otago Legal Issues Centre and Dr Bridgette Toy-Cronin is the Director of the University of Otago Legal Issues Centre and a Senior Lecturer in the University of Otago Faculty of Law. The authors made an equal contribution to the writing of this paper. They would like to thank John Dawson, Ben Schrader and the anonymous reviewer for their helpful comments on a draft of this paper.
and secondary sources, participant observation (contemporaneous notes of participation in the procession and opening sitting), and close reading of the speeches given at the ceremonial sitting.2
Questions about the role of courthouses are particularly relevant in a time when the jurisdictions that New Zealand tends to follow – England, Canada, and Australia – are all beginning to experiment with online courts.3 The justification for online courts is, in part, a response to continuing calls for improved accessibility of courts.4 Accessibility is an ongoing problem not only in the sense of physical access but also in how welcoming courts are to the public, particularly those who are in minority groups. It is therefore timely to examine what a physical courthouse means, particularly a grand and historically feted court, as we look to the future of courts.
In this article we trace the history of the DLC before exploring the enthusiasm for saving the building and celebrating its re-opening in January 2018. In the final sections we consider the ceremonies and the DLC in light of the relationship between Māori and Pākehā, and the changing nature of justice policy with its emphasis on efficiency and accessibility.
II The DLC – A brief history
A The DLC 1902-2010
In the 21st century, the city of Dunedin – located within the province of Otago and on the east coast of New Zealand’s South Island – is only the country’s seventh most populous city, and is not usually identified as a powerhouse if measured by its economic growth and political clout. In the second half of the 19th century, however, Dunedin made a substantial contribution to the development of the new colony’s British-derived legal and political institutions, many of which are still in place.
Prior to the arrival of European settlers, Dunedin and the wider Otago region were occupied by Ngāi Tahu. British sovereignty was proclaimed over New Zealand in 1840, and then, in 1848, the Free Church of Scotland and New Zealand Land Company established the settlement of Dunedin. The discovery of gold in Central Otago in 1861 helped propel Dunedin into a period of economic prosperity and population growth, and for a time it was New Zealand’s largest and most powerful urban centre.5 Its legal profession also expanded in the 1860s, with practitioners attracted to the litigation opportunities that the booming Otago goldfields and the region’s rich farmlands presented.6 New Zealand’s first university, the University of Otago, and its first law school, were established in Dunedin in 1869, followed a decade later by the precursor professional body to the one that became known as the Otago District Law Society (ODLS).7 These institutional developments, along with the high profile legal personalities who established law firm dynasties and played a leading role in national politics, all helped bolster Dunedin’s reputation as a leading legal city in the colony.
Dunedin’s first court building was erected in 1848, where the Law Courts Hotel now stands, and which is to the east of the site now currently occupied by DLC, in the Castle and Stuart Streets region.8 In 1863 a new Resident Magistrate’s Court was erected, which was quickly found to be unsatisfactory, and in 1878 the Supreme Court was relocated to the former Provincial Council site in the Exchange, which was, at the time, the hub of the city’s commercial district.9 This court building was beset, however, by structural and design issues, and from the mid-late 1880s and 1890s, the ODLS and other community leaders were campaigning for a replacement court building – and particularly one with architecture which better reflected Dunedin’s important legal status within New Zealand.10 Government Architect John Campbell’s courthouse design, a large neo-Gothic building made of Port Chalmers Breccia and Oamaru limestone with “imposing elevations” (it included a four-storey tower), was considered to meet that requirement, even despite some dissent over the problematic industrial site which was ultimately chosen for the
9 At 37.
10 At 51.
new building.11 In common with other sole-function courthouses built in New Zealand from the latter decades of the 19th century, the building’s grandeur symbolised the rule of law in the city.12
The opening of the new DLC in June 1902 provided the Otago legal profession with a public opportunity to showcase its growing reputation as the birthplace of law in New Zealand, and its links to English legal history, traditions and architecture. Sixty-two practitioners, including Ethel Benjamin, New Zealand’s first woman lawyer, donned their traditional wigs and gowns, and formed a solemn and “imposing procession”, walking in pairs from their former court premises to the Castle Street entrance of the new DLC.13 The procession was led by the sheriff, followed by ODLS President and celebrated criminal barrister Alf Hanlon (whose famous clients included Minnie Dean14). According to the local newspaper, the Otago Daily Times, so “unique a procession naturally excited a good deal of interest, and large crowds of people... congregated about Bond street [sic] to see it start”.15 Following the practitioners’ arrival, Justices Williams and Cooper and a Ministerial party, which included Acting Premier Sir Joseph Ward, then made their entrance into the new building.16 Local coverage of the day’s events was couched in glowing terms, with one reporter enthusiastically describing Dunedin citizens’ great satisfaction that their town had been “endowed with a Hall of Justice” which was “architecturally a thing of beauty”, and “one that could fittingly receive the Ruskinian description of ‘a joy forever”’.17
Dunedin’s status as the “birthplace” of New Zealand’s legal profession was still going strong well into the 20th century. The 1951 New Zealand Law Journal editorial quoted at the start of this essay made this clear, describing Dunedin as a place where the “highest traditions of the profession were cradled and nurtured” and where the “greatest men” had “adorned the Bench and Bar”.18 But a “Hall of Justice”, despite its
11 At 66.
external grandeur, can be expensive to maintain, and by that time, the DLC was in dire need of maintenance and repairs. This was dramatically illustrated during a Supreme Court sitting in 1951, when a large portion of the ceiling gave way and substantial portions of plaster fell on attending lawyer James Ward (who escaped unharmed). Only then were major alterations and renovations decided upon.19
The renovated DLC was reopened in July 1955 and the occasion provided another public opportunity for the “great men” of Dunedin’s past and its “high traditions” to be affirmed. This time the event was marked on an even grander scale than in 1902. Celebrations included the first sitting of the full bench of the Supreme Court in Dunedin, being the first time that the judges had appeared in their full regalia. As with the 1902 opening, a procession followed by a formal group photograph (this time taken inside the courthouse) formed part of the proceedings. Mayor of Dunedin Leonard Wright and Attorney-General Jack Marshall also wore their ceremonial regalia, and this added further gravitas to the event.20 Both the DLC’s own glorious past and English legal history were invoked in the Attorney-General’s address. The DLC was, he said, a place where “many famous trials” had been conducted and justice “dispensed as it is known only to our democratic way of life, following on the grand and hallowed tradition of our English legal system”.21
The generally antiquated state of New Zealand’s courthouses came under collective scrutiny from the 1970s, as part of a wider modernisation process of the legal system.22 Such scrutiny extended to the DLC. Over the next few decades, the suitability of the elderly building as a working courthouse, and its ability to meet the needs of both lay and professional court users, was regularly debated by the members of the Otago legal profession, local MPs, and the Dunedin City Council. In 1993, renovations were undertaken to the building, including works to strengthen the four-storey high tower, but its future as a working courthouse still remained controversial.23 The Prisoners Aid and Rehabilitation Society labelled the building’s two holding cells, located underneath the ground floor courthouse, a “security risk and health hazard”, due to chronic overcrowding, blocked toilets and no hand-washing facilities in both cells, and a broken window facing.24 While an Otago Daily Times editorial expressed support for the building in 1996, stating that it could not “envisage a modern building conveying the same gravitas”, ongoing
(Dunedin, 30 July 1955) at 9.
24 At 29.
concerns were being raised.25 In 1997 Judge David Saunders publicly criticised the building’s poor ventilation, and “cramped and inadequate conditions”, particularly for victims of crime and witnesses – adding that he had observed “a good deal of fungus” growing in a corridor of the building.26 The ODLS backed Judge Saunders’s comments, and, in response, the Department of Courts agreed, stating that “in 1997 we need something more suitable than a building constructed in 1902”.27
Despite such recurrent negative sentiments about the building’s suitability as a courthouse, in 2001 the Labour-led Government reaffirmed its commitment to the building, announcing that it would spend $11 million on refurbishment works. This included building a two- storey addition to the rear of the building to house the family and civil courts, which had been operating from temporary leased premises due to space limitations.28 Courts Minister Matt Robson, in announcing the court upgrade project, declared that the building was a “cherished city landmark with a great legal history which deserves to be protected”.29 Its close proximity to the Dunedin Railway Station (opened 1906), a tourist attraction noted for its Edwardian Baroque architecture, and effective advocacy from a growing heritage preservation lobby who maintained that Dunedin’s historic buildings were what made it distinctive, were two other important factors that had featured in this and subsequent debates.30
The official reopening of the renovated and extended courthouse on 31 January 2003 was again marked by a “wig and gown” procession from the Dunedin Town Hall to the DLC, led by the Mayor of Dunedin Sukhi Turner, Chief Justice Dame Sian Elias, and two senior local members of the police force. Participating practitioners, Governor-General Silvia Cartwright, members of the judiciary (including some of the District Court judges who had not joined in the procession), and professors from the Faculty of Law were then photographed on the steps of the courthouse. These events deliberately recreated the 1902 opening day events, with the Otago Daily Times noting that the pomp and ceremony of the reopening outdid those of 1902.31 The sub-committee which had
(Dunedin, 23 July 2001) at 1.
organised the procession, chaired by Justice John Hansen, also held a ball that evening at the Town Hall.32
B Canterbury Earthquakes
Located 360 kilometres to the north of Dunedin is the much larger South Island city of Christchurch, within the Canterbury region. Two major earthquakes in 2010 and 2011, centred in Christchurch, caused significant loss of life and property, including to its court buildings. The replacement building, the Christchurch Justice and Emergency Services Precinct (“the Christchurch Precinct”), opened in October 2017. The Christchurch Precinct houses 19 courtrooms as well as other government agencies including the Police and Department of Corrections. This development has historical precedent both in the town halls of medieval England and in early colonial New Zealand, whereby courts were commonly co-located in buildings alongside government agencies such as post offices and police stations.33 But this move towards developing legal precincts has raised constitutional concerns in some legal quarters, as it risks, as Elias CJ noted in late 2017, “the blurring of the distinct role of the courts”.34 We will examine these constitutional concerns later in this article.
C DLC 2011-2018
The Christchurch earthquakes impacted upon the DLC’s fate. The building strengthening works undertaken in 2001 had not extended to the ground floor. An engineer’s assessment, undertaken after the Christchurch earthquakes, found that the DLC’s tower was likely to topple in a moderate earthquake, which could then cause widespread damage to the building.35 The DLC was then partially closed in December 2011 for earthquake strengthening assessment purposes and eventually all court services were relocated to temporary leased premises in nearby High Street.36 Subsequent investigations showed that a hefty injection of Government expenditure – with estimates ranging from $5-15 million
– was needed to bring the courthouse up to compliance with stringent new building standards, and this sparked controversy.37
(online ed, Dunedin, 1 May 2015).
(online ed, Dunedin, 1 May 2015).
While the Government deliberated, and further engineering assessments were undertaken, public debate – largely played out in the pages of the Otago Daily Times – raged over the merits of preserving and restoring the historic building. By 2015, a “Save the Courthouse” campaign had been formed – characterised as a ‘battle’ by the supportive newspaper.38 The Dunedin City Council “unanimously” joined the battle and its Mayor, David Cull, wrote to several Government ministers (including Prime Minister John Key) to “highlight the building’s plight”.39 Leading members of the local legal profession, including barrister Anne Stevens and Professor Mark Henaghan, then Dean of the University of Otago Faculty of Law, featured prominently in the “Save Our Courthouse” campaign, enlisting the support of law alumni as part of their efforts.40 News of the Government’s decision to commit to earthquake-strengthening and upgrading the courthouse, in December 2015, was characterised in Dunedin as a “David versus Goliath” win for the city against the central Wellington bureaucracy.41
On 26 January 2018 the DLC re-opened. The formal events of the day began with a re-opening ceremony attended by Prime Minister Jacinda Ardern, Minister of Justice Andrew Little, Chief Justice Sian Elias, Mayor David Cull and other invited guests. It included the presentation of a time capsule, to be placed under the building. At 1pm a procession began, originating in the Dunedin Town Hall and finishing outside the DLC, led by the Mayor, Chief Justice, and Justice William Young (wearing the new Senior Courts’ robes), and other members of the judiciary (wearing their traditional red robes), followed by – in predetermined hierarchical order
– the wigged and gowned members of the profession, the law faculty in academic regalia, and then the gowned members of the profession.42 The streets were lined with members of the public, bolstered by crowds off a cruise ship which was in dock. Formal parades of graduands, wearing academic regalia and marching along Dunedin’s George Street, have
(online ed, Dunedin, 22 August 2015).
(online ed, Dunedin, 22 August 2015).
Clarke observed: “Parades commonly present a society in hierarchical order, with participants marching in an order indicative of their rank”: Alison Clarke “Feast and Fasts’: Holidays, religion and ethnicity in nineteenth-century Otago” (Doctor of Philosophy University of Otago, 2003) at 255.
been a regular feature of Dunedin city life since the 1990s.43 The sight of a procession may, therefore, have been less surprising to the locals than to the passengers from the cruise ship. At the end of the procession the group was photographed outside the DLC and a ceremonial sitting then followed. In the evening, the Otago Branch of the NZLS hosted a “Justice Sector” ball in the Town Hall to celebrate.44
We now turn to examine why so much attention was lavished on the DLC, both in the campaign to continue to use it as a working courthouse and in celebrating the re-opening.
III The DLC – the city, the profession, and the constitution
We have identified four major themes that justify the attention placed on the DLC: promoting Dunedin’s importance within Aotearoa; strengthening the prestige of the legal profession in the eyes of the public; reinforcing solidarity within the legal profession; and defending the judicial arm of government. We discuss each in turn.
A Promoting Dunedin’s Place in Aotearoa
One of the purposes of the 2018 re-opening ceremonies was a reassertion of Dunedin’s place in the nation. Given Dunedin’s reduced importance in Aotearoa (compared to its preeminent status in the second half of the 19th century), it is important to the city to maintain its symbols of eminence and prestige. The grand building itself is one of these symbols, as well as Dunedin’s ongoing status as a “nursery of the profession”.
The 2015 “Save Our Courthouse” campaign had contained strong references to this theme. For example, Associate Professor Donna Buckingham, then NZLS Otago branch president, said the building “was more than just a beautiful building”, it was “a symbol of commitment to the administration of justice”, representing the “roots of the legal profession in Dunedin”.45 The theme also made appearances in the re-opening ceremonies, being referenced by all the speakers at the ceremonial sitting. NZLS President Kathryn Beck referred to Dunedin’s “strong, rich history” and, speaking on behalf of the Attorney General, John Pike referred to the “rich vein of legal talent” that comes from Otago and to the “almost industrial production of judges and leading lawyers from this city”. NZLS Otago Branch President John Farrow discussed
(online ed, Dunedin, 1 May 2015).
Dunedin’s importance as a “Mercantile Centre”, but noted it had always been “more, a lot more” than that: “The court stands testament [to] ... the importance that [Dunedin’s] founders placed on the law and the administration of justice”. Recalling past legal luminaries, New Zealand Bar Association President Clive Elliot said that “Dunedin continues to be served by an active and highly accomplished bar upholding the best traditions of the independent bar”. The Chief Justice closed her speech by saying it takes “a great city to raise and keep a courthouse like this”.
The re-opening ceremonies brought the legal and political elite to town: Prime Minister Jacinda Ardern, Minister of Justice Andrew Little, the Chief Justice of New Zealand, the heads of the High Court and District Court benches, along with a number of other judges and legal luminaries. All of this was broadcast on national television and radio.46 In this way the preservation of the building and the re-opening celebrations can be seen as Dunedin drawing attention to its illustrious past and asserting its place in the nation.
B Strengthening the Prestige of the Profession in the eyes of the public
The preservation of the DLC and the re-opening ceremonies also provided the legal profession with an opportunity to assert its own role, prestige, and importance to the general public. The legal profession can be seen as using the ceremonies to promote its own image, both through the wearing of ceremonial dress in a public procession, and through being associated with a grand building of justice.
In the 21st century, groups processing through main city streets are a less common spectacle than they once were. Since the 19th century, processions in New Zealand, as historian Ben Schrader notes, have enabled many social groups “to represent themselves in the public space and bolster their social identities”.47 As Schrader explains:48
Processions and marches are organised and choreographed parades of social groups through streets and other public spaces. Their fundamental aim is to make a statement: from upholding the authority of power elites, to celebrating or commemorating an event, to publicising and seeking support for a grievance.
Although not a group that Schrader discusses directly, the legal profession took part in “wig and gown”49 processions from early colonial history, a practice that can be seen as designed to “uphold the authority” of this group of “power elites”. Courthouse openings were marked with wig and gown processions, for example, in 1865 in Auckland,50 in Dunedin in 1902, and in Christchurch in 1938.51 There are now few occasions in New Zealand where the legal profession don ceremonial attire and even fewer involve a procession.52 Only Dunedin has carried on the practice into the 21st century, repeating the processions for each court re-opening (1955, 2003 and 2018).53
The Otago legal profession’s public processions have various antecedents in English legal history. The twice-yearly visits of High Court judges to English country towns in the 18th century were, according to historian Douglas Hay, a “formidable spectacle”, and the “most visible and elaborate manifestation of state power to be seen in the countryside”.54 Judges wearing full legal attire were welcomed to the towns by the sheriff, bells and trumpets, and were preceded by the sheriff’s men, in formal dress and armed with javelins”.55
The Otago processions also bear strong resemblances to the Opening of the Legal Year procession, held in London in October each year. This public procession is a legal pageant with antecedents dating back to the
Courthouse”, Law News, Auckland District Law Society, 16 March 2018.
55 At 27.
reign of King Edward I (1272-1307) in England, and, in Europe, back to Notre Dame Cathedral, Paris, in 1245.56 As part of the ceremony, English judges and senior counsel, donned in their full ceremonial attire, traverse a three kilometre distance, from Temple Bar to Westminster Abbey, dressed in full ceremonial regalia.57 There they participate in a service involving prayers for guidance and hymns, which is aimed at recommitting them to “the highest standards of excellence and ethics in practice and the primacy of the Rule of Law”.58 The Opening of the Legal Year ceremony is now one that is observed in many Commonwealth countries, although with varying degrees of public pomp and ceremony and not always with a procession.59
While there are antecedents for the Dunedin tradition of the city- street wig and gown procession to mark the opening/re-opening of the DLC, it is, in the sense used by historian Eric Hobsbawm, an “invented tradition”. An invented tradition is “a set of practices ... which seek to inculcate certain values and norms of behaviour by repetition, which automatically implies continuity with the past”.60 The legal profession has drawn on the vast store of “ancient materials”61 to construct the opening/re-opening ceremony, creating the appearance of an ancient rite even though it dates only to 1902 and is novel in its purpose as marking
an opening/re-opening. The DLC building itself can also be seen as an invented tradition. Its neo-Gothic architecture recalls an older, English past, even though it is a 20th century building in an antipodean nation.
One of the purposes that invented traditions – the procession, the wigs and gowns, the DLC – serve is “establishing or legitimising institutions, status or relations of authority”.62 That is, they serve to strengthen the legal profession’s place, power, and prestige in the eyes of the public. The procession, in regalia, makes the legal profession very visible to the public, including the public observing the procession via the media. Through the procession to the DLC, the profession also reminds the public of its association with the building. The courthouse is what sociologist Andrew Abbott calls the legal profession’s “charismatic heartland”.63 It is the place where the legal profession gains its status in the eyes of the public by its contact and imposition of order over crime and conflict.64 As NZBA President Clive Elliot said in his speech at the ceremonial re-opening, the DLC are a “proud and prominent reminder of the gravity and the importance of the work that the legal profession do”. Processing through the city centre to the DLC can be seen as part of the profession’s “systematic campaign of public relations aimed at persuading the public of the active contact of profession and professionals with publicly charismatic disorder”.65
This role of the DLC and the re-opening celebrations in increasing professional prestige was not – unsurprisingly – a matter highlighted in the speeches at the 2018 ceremonial sittings. Instead, John Farrow suggested that the procession was a celebration of the Dunedin and Otago communities. He noted that the re-opening of the court was a joint effort of “the practitioners, the judiciaries, law faculty, Police, ministry staff, Dunedin City Council, members of the Otago public, and the Government” to save the court from closure. He went on to say that “It’s apt that we have all marched today to celebrate and show our appreciation for that collective achievement”. This statement somewhat blurs the nature of the procession which, as Ben Schrader points out, requires the static element of the crowd, and the procession of other people.66 The only people invited to march were the mayor, the judiciary and legal practitioners, along with members of the Faculty of Law. The other people who supported the restoration of the DLC, along with the general public, formed the crowd.
In this sense, the ritual of the procession could be interpreted along the lines suggested by sociologists Garfield and Michalowicz. In their review of various interpretations of ritual and tradition, they concluded
64 At 827-830.
65 At 832.
66 Schrader, above n 46 at 239.
one interpretation was that it is “a means by which one group advances or defends its interests by exaggerating the degree of consensus and hiding the realistic interests of other groups”. The legal profession has a strong interest in the public continuing to support its monopoly on the provision of legal services, even though those services are priced out of the reach of many members of the public.67 The procession, the open sitting of the court (although not in fact attended by the public), and the references to the public as supporters, could be seen as manipulative, a means for the legal profession to maintain the status quo.
C Reinforcing solidarity within the legal profession
While we have suggested that the preservation of the DLC and the re- opening ceremonies provides an opportunity for the legal profession to strengthen its image in the eyes of the public, it also provides an opportunity to strengthen bonds within the profession.
Strengthening ties within a group is one of the purposes that ritual and tradition – including invented tradition – can serve. As Hobsbawm states, the other overlapping purposes of invented tradition (in addition to legitimising institutions or relations of authority) are “establishing or symbolising social cohesion or the membership of groups, real or artificial communities ... and ... socialisation, the inculcation of beliefs, value systems and conventions of behavior”.68 The wig and gown processions through the town centre can therefore serve to strengthen professional bonds.69
The purpose of professional bonding was explicitly invoked by NZBA President Clive Elliot, who said “events like these are so important in terms of maintaining the fabric of the legal profession” and that “these events play such an important role in the life of the profession in the wider sense”. This purpose was also invoked in the repeated calls in the speeches to uphold the traditions of lawyering, recalling legal luminaries
of the past and encouraging aspiration to their standards.70 The humorous anecdotes told during the speeches, most notably about the raucous retirement party for Justice Joshua Strange Williams at the Savoy Hotel in 1914,71 provided some levity for the audience but also could be seen as a form of professional bonding. While the ceremonial sitting was open, in that members of the public could have theoretically attended, it was packed with gowned and wigged legal professionals, uniformed police, court staff, and others related by professional ties to the court. In-group stories were therefore appropriate to the audience and could be seen as serving the function of strengthening group cohesion.
This interpretation finds support in the ongoing debate in New Zealand, since the 1970s, over the legal profession’s dress. The wearing of legal regalia has its roots in medieval England, and was transplanted to Aotearoa with colonisation. In 1971, Auckland practitioner Donald Dugdale critiqued the wearing of wigs and gowns, referring to the new practitioners’ admission ceremony as his example:72
[I]t must be a continual source of wonder that most other learned professions seem to manage perfectly well without such pomp and circumstance. In modern Western civilization only the church has similar rites, and indeed our present admission ceremony has obvious liturgical parallels. (It should however be made clear that as the present writer understands the position there is no truth in the rumour that the admission rules are to be further amended to include a laying on of hands by the Chief Justice).
The wearing of regalia was explicitly acknowledged as serving the purpose of strengthening professional identity by those who supported its continued use. Justice North strongly rebutted Dugdale’s critique later in 1971, emphasising the importance of emulating the legal traditions of the English Inns in order to encourage new practitioners
to aspire to successful careers at the Bar.73 The majority opinion of the 1978 Royal Commission on the Courts then recommended that gowns and wigs should be retained in the appellate courts. The Commission agreed that regalia encouraged unity, on the basis that distinctive dress was commonplace “for those pursuing callings and occupations” in the community, such as members of the services, clergy and police.74 The Department of Justice, in comparison, had submitted to the Royal Commission that wigs and gowns were an “unnecessary relic of the past” and had an “alienating effect on lay people” who appeared in court.75 Most legal regalia was eventually abolished for all but ceremonial occasions (gowns are still worn in the High Court and Court of Appeal, but not wigs).76 Debate has continued to resurface however into the 21st century, with calls to reintroduce gowns in the District Court (including the Family Court) in order to increase the “gravitas of the court in the public’s eye”77 or to encourage “minimum standards of performance of lawyers”.78
By processing through the town centre in regalia the legal profession can create a sense of belonging both for those taking part in the procession, and for members of the profession later viewing photos and recordings of the event.
D Lawyers performing their political role – defending the constitution
We have suggested that the preservation of the DLC and the re-opening ceremonies served two useful purposes to the legal profession: to strengthen their reputation in the eyes of the public and to reinforce their own professional bonds. Such an interpretation could be read rather cynically: that lawyers are self-interested and concerned only with strengthening their own position, not in serving any greater good. Lawyers’ participation in both saving the courthouse and in the re- opening ceremonies also needs to be recognised, however, as performing another important function: undertaking their political role in defending the constitutional arrangements of our liberal, moderate state.
Legal historian Wes Pue characterises the Weberian idea that lawyers established the profession primarily out of self-interest as “alluring” but concludes that “such interpretations dreadfully caricature the process of professionalisation”.79 While Pue was discussing the development of the Canadian common law legal profession, these ideas are equally applicable to New Zealand, which was also a British colony. Pue, as well as socio- legal scholars Halliday and Karpik, emphasise that lawyers are political actors and play a key role in constituting the liberal state: “Western legal professions have historically been engaged in ‘political projects’ that constitute political liberalism. They have been among the builders of the liberal state and society”.80 When lawyers perform a political role it is to defend lawyers’ “distinctive conception of liberalism, a conception much narrower than broad political definitions”,81 principally involving defending the rule of law and the separation of powers.82 Lawyers are particularly watchful of any actions by the executive or legislature (the other, separate, arms of the liberal state) that threaten to usurp judicial power or degrade judicial independence.83 When these elements of the liberal state are challenged, lawyers will take a role as the corps intermédiaires, a body who will “spring to the defence of constitutionalism, the courts, legal proceduralism, and other pillars of the rule of law”.84 The 2018 DLC re-opening speeches are an example of this tradition; the speeches were replete with references defending lawyers’ “distinctive conception of liberalism” – maintaining the separation of powers (through housing courts in buildings that are separate from the executive functions) and defending the rule of law (through administering justice according to law, supported by adequate resourcing by the executive).
The defence of the separation of powers was mounted via references to the DLC as a stand-alone building. This provided a useful contrast to the newly opened Christchurch Precinct which, as discussed, co-locates courts with agencies performing executive functions (including the Police and Corrections).85 The Chief Justice said at the DLC opening:
In this city at least you have a courthouse frankly acknowledged as such where the courts are not buried in a wider governmental precinct. That visibility matters.
81 At 17.
82 At 21.
The comment drew laughter, indicating the audience were well versed in the politics of the Christchurch Precinct. John Pike (appearing on behalf of the Attorney-General) defended the co-location of the courts in Christchurch. He referred to the Chief Justice’s “wry, amused, concern perhaps” and referred to historical examples where the police station and court were co-located. The Chief Justice demonstrated she was well aware of this history by interjecting into this list “and jail”. John Pike picked up this comment and recalled that the old Dunedin Women’s Prison was so close to the judicial chambers that when the prisoners were on the balcony they could give “helpful advice”.86 John Pike was therefore advancing a defence, on behalf of the Executive, suggesting this constitutional pillar was not being undermined.
John Farrow however reiterated the Chief Justice’s concern in his speech, referring to the importance of impartially administering justice and stating that “while some New Zealand courts are now clustered into justice precincts ... Dunedin moved in the opposite direction”.87 He praised the DLC as “stand-alone courts steeped in a rich tradition of administering justice”. While not directly referencing this issue, Clive Elliot said that “we do need to remind ourselves particularly at any difficult times that the death to the rule of law and open justice may not come from one, but a thousand, cuts”. The political element of the speeches was not lost on Mr Pike, for the Attorney-General, who said he wished to draw to the Court’s attention the “Government’s commitment to the continuation of the rule of law ... and above all, the necessary independence that must be maintained by the judiciary”.
The speakers also used the opportunity to emphasise the need for courts to be sufficiently resourced by the Executive to perform their functions and maintain independence.88 It was emphasised by the Chief Justice, Clive Elliott, and John Farrow. Clive Elliott said that “it goes without saying” (although going on to say it), that “not only must the courts be open to the public but they must remain open and be properly functioning”. John Farrow said that “Long may this court, and courts like it, remain open as fully functioning working courts. Justice must continue to be done in public in an open court”.
The DLC symbolises an important constitutional principle – the separation of powers – in that is both imposing (signaling its importance) and free-standing (separation made manifest). The re-opening therefore provided the profession with the opportunity to perform their political role in the liberal state of defending the country’s constitutional arrangements.
The Chief Justice put particular emphasis on the administration of justice according to law. This was a defence of the rule of law, emphasising that rule of law included the need for access to the courts and for removal of impediments to access: “We have to be careful that modern case management and court fees do not impede the direct access of any citizen who has a claim of right”.89 She said that the purpose of the DLC, from its first opening, and continuing, today was:
... [not to] provide “justice services”, which is the wider mandate of the Ministry of Justice. It was a frankly acknowledged courthouse set up to deliver right according to law, which all judges are sworn to deliver. That is still the function of the courts of this jurisdiction.
This can be interpreted as a direct defence of the role of courts in the liberal state against Executive policy that sees the courts as part of “justice services”.
Having explored the various ways in which the DLC play an important role in Dunedin, the legal profession, and the defence of the constitution, we now turn to examine the place of the historic courthouse in our nation today. We consider both the place of a colonial era court in a society that is moving towards greater recognition and implementation of its obligations under Te Tiriti o Waitangi and also in furthering justice system goals such as accessibility and efficiency.
IV Māori and Pākehā in Aotearoa
From the first opening, the DLC has been publicly connected with a relatively long, eventful and apparently distinguished English legal past. This was evident in the 1902 opening ceremony, where prominent Dunedin practitioner Allan Holmes, for example, delivered a “monumentally Whig address”, invoking the foundational English legal document the Magna Carta, leading English luminaries Sir Edward Coke and John Hampden, as well as the Seven Bishops as “protecting spirits of the future administration of justice in the new courts”.90 Similarly, the 1955 ceremony invoked a glorious English legal history.
Affirming the power and majesty of British law was a consistent theme of speeches given at courthouse opening ceremonies throughout the 19th and early 20th centuries. Just like the ancient Romans, the British, as G.A. Bremner has noted, were “keen to carry and reproduce their social, cultural and political institutions wherever their empire took them”.91 The Hong Kong Supreme Court, built in 1900, was designed to
“signify something noble in the mind of the colony’s governing elite” and to convey via “its form the rule of law as the principal cornerstone of British imperial government”. Bremner’s observation can equally be applied to the DLC, particularly bearing in mind the pomp and ceremony that surrounded its opening day events.92 Notably, the role of Māori law and legal institutions was absent from this rhetoric.
Reference to the role of Māori made a stronger, if ambiguous appearance in the 21st century, during the 2003 and 2018 DLC re-openings. In 2003, the morning ceremony included a kapa haka performance, and the Chief Justice’s address acknowledged the role Ngāi Tahu had played in the Treaty of Waitangi settlements.93 Every speaker at the 2018 ceremonial sitting gave an opening and closing in Māori, while counsel also added the usual formality of “may it please the court” after their Māori closing. Both the Chief Justice and John Farrow’s introductory mihi made specific reference to the court building. The Chief Justice’s began “Te whare e tu nei, e tu rangatira koe”, acknowledging the house (whare) being the court, as an ancestor (rangatira). In the speech itself, the Chief Justice referred to her mihi: “In my opening mihi I acknowledged it as an ancestor, as for us who work in the courts, it is”. Ms Beck referred to the court as a taonga (treasure): “I’m proud to be part of the profession who worked so tirelessly to preserve an important part of the fabric of our legal history, this taonga”.
These references and acknowledgements of Māori culture might represent some progress towards bicultural nationhood, a genuine integration of Māori and Pākehā language and cultural ideas. The Chief Justice was also wearing the new robes, introduced in 2017, after the Supreme Court decided to cease wearing the English-derived red woollen medieval-style gowns and wigs. The new robes are black silk and cotton, decorated with leaves and kauri cones and embroidered motifs invoking aspects of Māori culture.94 They represent, as the Chief Justice said at another event, the “twin heritage” of our country.95
Listeners could have been left questioning how deep this commitment and understanding of Māori culture runs, however. The Chief Justice’s mihi used an analogy between the whare tīpuna (ancestral house) on a marae and the courthouse (whare kōti). The whare tīpuna is a “symbol of tribal identity” and is usually given the name of an ancestor:96 “The
92 At 177-178.
Graham Lecture, Maxim Institute, Auckland, August 2018.
ancestral name is a uniting force as most of the people associated with the marae can trace a genealogical line to the ancestor. So it is their ancestor and their house and their land”.97 The Chief Justice’s analogy invoked the idea of an ancient legal history but it is one that is, as we discussed before, particularly British.98 It is also a legal culture that has been in many ways hostile to Māori, providing a mechanism for 19th century Māori to be deprived of their land, culture, and sovereignty. In 2018, only 6.1 per cent of New Zealand lawyers identified as Māori whereas 12.1 per cent of the working age population are Māori.99 It is also well-known that Māori are well overrepresented in all areas of criminal justice statistics, including making up 50 per cent of the current prison population.100
Furthermore, while there were plenty of invocations of a positive Dunedin past during the ceremony (the mercantile centre, the illustrious practitioners), there were no references to a bleaker and more shameful story that lies beneath the DLC.101 The site was formerly the Dunedin Gaol from 1855 to 1899 – and the place where a total of 211 Māori political prisoners, from Taranaki in the North Island, were sent and detained in 1869-1873 and 1879-1881.102 Their imprisonment arose out of various land disputes with the Crown in the Taranaki region, within the context of the New Zealand Wars, and had been preceded by the Crown’s invasion of the settlement of Parihaka and the forceful eviction of its residents and destruction of their homes, animals and crops. While incarcerated in Dunedin, these prisoners were put to work, alongside other prisoners, on various large-scale and physically demanding public works projects around the city, which included dredging the harbour, quarrying and road-building works.103 Some prisoners were already in poor health upon arrival in Dunedin – having been detained in crowded conditions in a hulk in Wellington harbour – and the heavy prison labour and the damp and cold prison conditions led to a further deterioration in their health.104 Twenty one of these prisoners died, and were buried
in unmarked graves.105 This history is easily available, as the Crown’s shameful treatment of these prisoners was officially acknowledged only months before the reopening, in June 2017.106 Despite this, no references were made to this past during the 2018 ceremonial sitting.
There are however moves to consider how Māori culture and the obligations under Te Tiriti could be honoured at a deeper level in our courts. The architecture of New Zealand’s top appellate court, the Supreme Court in Wellington (opened in 2010), attempts to represent the indigeneity of the Court and partnership interests of Maori as tangata whenua under the Treaty of Waitangi. This formed part of the design brief, and is represented by such features as the selection of waka huia displayed in front of the Supreme Court bench and the use of indigenous natural resource emblems such as the pohutakawa / rata screen and the kauri cone.107
Other moves have also been afoot to challenge the dominant Pākehā perception of what a ‘day in court’ means. Some of these include a move away from the idea of court users attending the traditional purpose- built courthouse. Rangatahi and Pasifika Courts, first trialled in 2008, and currently used for Māori and Pasifika youth involved in the youth justice system, are held on marae (for Māori youth) and in Pasifika churches or community centres (for Pasifika youth).108 These courts follow appropriate cultural processes involving the youth’s families and their wider community.
While these developments represent progress towards biculturalism, one might question uncritically lauding the design of a colonial era court and even honouring it as an ancestor (an idea taken directly from Māori culture) without also acknowledging the more troubled history that lies beneath.
– an update” Maori Law Review (Nov. 2014); see also: Ministry of Justice “Rangatahi Courts and Pasifika Courts (17 August 2018) Youth Court of New Zealand www.youthcourt.govt.nz.
V Cross-currents in justice policy – majesty, efficiency,
In addition to the questions the court opening raised about Māori-Pākehā relations in the justice system, it is also important to consider how a majestic, sole-purpose courthouse, designed over one hundred years ago, fits within a modern justice system.
Save our Courts campaigners had advocated restoring the DLC on the grounds that it was needed to inspire awe and respect in those who were summonsed to come before it. Speaking to the Otago Daily Times during the campaign, Mark Henaghan reflected that as the administration of justice was a “serious business”, it was “best performed in a serious, purpose-built space”:109
People when they come to court need to feel respectful of the court itself. It’s a formal occasion. There’s a sense of occasion. You remove that and you remove a sense of what the law is about. A courthouse needed to show everyone involved in a court sitting had their place.
An alumni practitioner, speaking as part of the campaign, evoked similar language, arguing that the building was “important for maintaining people’s respect for the rule of law” due to its “dignified, authoritative style”.110 Such sentiments demonstrate consistency with responses to the original courthouse opening in 1902, when the building was described as “imposing” and its size and elevated views were considered an appropriate reflection of its importance.
This idea of an awe-inspiring building is in tension with moves in the past half century to make the legal system – including the courts – more accessible and welcoming to all court users, both lay and professional. This development has been in response to growing recognition that minority groups and disadvantaged people within New Zealand society, in particular, perceive that the overwhelmingly Pākehā orientation of the legal system, was “complex, alien and remote from the lives of ordinary people”.111 Improving accessibility to the legal system was identified by the New Zealand Law Commission (NZLC) in 2003, for example, as an important principle in its recommendations for reform. This principle encompassed ensuring that court users had adequate information and advice, understandable processes, and cultural responsiveness.112
As part of this re-evaluation process, formal legal occasions and traditions (including dress, as we have discussed), have been subject to increasing scrutiny and their appropriateness questioned in light
(on file the authors).
of efforts to improve accessibility. Such scrutiny has extended to the courthouse buildings as well, and particularly their interiors. Courthouse designers, particularly with new courthouses, have become increasingly attuned to the need to make court buildings more welcoming than their predecessors. Lighting, acoustics, signage, comfortable public seating, waiting areas and public amenities are just some of the areas that they have paid attention to in the effort to address accessibility concerns.113
When the NZLC had consulted the public in 2002, it found responses were “almost evenly split between those who think the current degree of formality should remain and those who find the courts too formal and intimidating”.114 It might be that there is a place for maintaining the tension between being intimidating and welcoming. This is a feature of Christian tradition and churches, with which our court system has a closely entwined history. The grand courthouse might serve many seemingly contradictory purposes simultaneously: to be a visible symbol of the judicial arm of Government, to physically manifest the separation of powers, to inspire awe and respect, to be accessible and welcoming to those who come willingly, or who are summonsed before it.
It is possible that the need for buildings of any public nature will come under pressure as some jurisdictions move towards online courts or online forms of dispute resolution. While this trend has not reached New Zealand yet in any significant way, it has washed up close to our shores, as Australian states announce moves towards trialling online courts.115 Would it matter if the court was only a backroom office? Is a court a building or just a collection of the people who do the work of the court? In the 2018 ceremonial sitting Chief Justice Elias said “A court is not of course a building. The administration of justice does not require any particular dignity in housing”. This echoed comments she made at the 2003 re-opening “that if justice was to be duly administered, it mattered little where that took place”.116 Such comments minimise the role of tangible symbols in what the Chief Justice has at other times referred to as our fragile constitutional arrangement.117 The visible, grand, free-standing courthouse is a symbol of the judicial arm of government in our constitution and the related principles of rule of law, judicial independence and the separation of powers. We query what it would
II) (NZLC PP52, 2002) at 19 and 21.
(Dunedin, 1-2 February 2003) at A26.
Graham Lecture, Maxim Institute, Auckland, August 2018.
mean if such symbols were to be replaced by less tangible and visible ones.
In the face of these cross-currents within New Zealand’s legal system, the Dunedin legal profession’s traditions of veneration for its historic building and its participation in public processions may come under increasing pressure. Public and Executive sympathy for preserving grand buildings that do not respond to the multicultural present or the desire for greater accessibility may be hard to garner again. It was very difficult to secure funding for renovations after the DLC’s 2011 closure and it seems it may be even more difficult to secure such funding in the future.
VI Conclusion
Our aim in this article has been to examine the legal profession’s enthusiasm for saving the DLC and celebrating the re-opening with a series of events, including a very public procession. While this has been a case study on the DLC, the legal profession’s enthusiasm for celebrating historic courthouses is by no means confined to Otago.118 The examination of the case of the DLC is therefore applicable more widely, explaining the profession’s interest in preserving and celebrating the grand historic courthouses. These explanations lie both in reasons of self-interest to the profession and in enabling and supporting the profession in performing and defending our constitutional arrangements. Dunedin however has the added motivations of a strong attachment to its historical role as a founding city and as “the nursery of the profession”.
We expect that in future, such celebrations and efforts at preservation will come under pressure to recognise cross-currents that are flowing through Aotearoa’s justice system. In the past couple of decades, the Courts have already been demonstrating receptiveness towards integrating aspects of tikanga Māori into aspects of its legal rituals (its ceremonies, for example) and buildings. These changes are particularly apparent in our top appellate court, where, as we have already noted, designers of both the new Supreme Court building and of the judges’ new formal dress have attempted to recognise the indigeneity of the Court. Pressure is likely to continue to come for calls for more accessibility, including the enticements of an online court.
To find our way forward as a country we need to ask – whose justice
system and whose version of the past are we venerating in preserving
and celebrating courthouses? Should we be making a more concerted effort to invent more inclusive traditions – one which recognises a greater diversity and less Pākehā-centric version of New Zealand’s histories? And should the past that we are focusing upon be a less rose-tinted one at that?119 In asking these questions and by being critically engaged with the interests at stake in the celebrations of these buildings – local, professional, constitutional – we can develop future courts for Aotearoa that better meet the needs of all New Zealanders.
Otago legal practitioners assembled outside the Dunedin Law Courts on its opening day, 23 June 1902. Ethel Benjamin is in the centre. Source: Otago Daily Times
Otago legal practitioners and members of the judiciary seated inside the Dunedin Law Courts for its ceremonial reopening, July 1955. Source: Otago Daily Times
Justice William Young, Mayor Dave Cull and Chief Justice Sian Elias lead the procession of the
legal profession from the Dunedin Town Hall to the restored Dunedin Law Courts, 26 January 2018. Young J and Elias CJ are wearing the new Senior Courts’ ceremonial robes. Source: Gerard O’Brien,
Otago Daily Times
Members of the Otago legal profession, judiciary, University of Otago Faculty of Law, and distinguished guests assembled outside the restored Dunedin Law Courts, 26 January 2018. Source: Otago Daily Times
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/OtaLawRw/2018/5.html
