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Dame Lowell Goddard (co-convenor)

Ngāti Kahungunu, Te Aitanga-a-Māhaki, Ngāi Tūhoe

Lowell Goddard (DMNZ) was a Judge of the High Court from 1995 to 2015. In 1998 Dame Lowell was appointed Queen’s Counsel and in 1992 she became Deputy Solicitor-General for New Zealand.

During 2007 and 2012 she chaired the Independent Police Conduct Authority and from 2010 to 2016 she was a member of the United Nations Subcommittee on the Prevention of Torture.

Why did you join the panel?

What appealed to me, when I was first approached to join the panel, was the opportunity to engage in a serious discussion about what a fair and just New Zealand society might look like. The role of Te Apārangi is to produce well-researched and thoughtful advisory pieces, to inform the Government and the public about current and emerging issues. Because of my particular experiences in legal practice and through human rights work, I was very interested in contributing to this project.

The particular issues with which this panel is tasked constitute a major project, requiring the examination of a matrix of inequities, inequalities and unfairnesses currently operating in New Zealand. It is timely to be casting a lens over the increasing complexities of New Zealand’s economic, social and cultural landscape as it rapidly evolves and diversifies. The challenges, a number of which will be examined by this panel, appear to be increasing rather than decreasing and their effects are plain to see in our communities.

The panel is a variously experienced group, comprising in the main scientists and academics. Our approach to the task has already been the subject of developed thinking. Given the breadth and depth of the topic, we are each focusing on discrete issues of fairness and social justice, according to our particular areas of expertise and experience. Our work is already quite well-progressed and we are in the process of bringing it forward for collective discussion.

I regard it as a privilege to be working with such a team of experts, each of whom has an established record of commitment to social justice.

What do you bring to the panel?

I am not an academic, which means I approach things rather differently to my fellow panel members.

My training is in the law and my practice of the law has always been in the courts; first, as defence counsel for many years; then as a senior prosecutor for the Crown and most latterly as a High Court Judge. I have also been fortunate to have gained wider experience in of the field of human rights law, particularly in relation to the humane treatment of those deprived of their liberty in a variety of settings: police detention; youth detention; penal servitude; immigration detention; mental health facilities; aged care facilities and other.  I have examined these issues at the domestic level, in the context of civilian oversight of police, and at the international level as an independent expert for the United Nations.

The various overlapping areas of my practice in the law and in human rights work have exposed me to numerous social issues and particularly to the relationship between poverty and crime and how these directly interface.

I first became involved in access to justice issues at an early stage of my legal career. In the 1970s I was part of a small group of lawyers that started going into the Children’s Court on a voluntary basis to help advise families at a time when there was no child advocacy service. We had heard there were unmet legal needs and real issues of access to justice in that Court.  In the absence of legal advice and representation, families often did not understand what it meant for their children to be made wards of the State at the request of the Social Welfare Department.

Quite clearly, the inability to understand and navigate the legal system can have a major impact on a person’s life. There were a lot of children living on the streets in the 70s, many of whom were in and out of the system on a cycle of poverty, with a lack of any real opportunity, including lack of access to good nutrition and educational support and therefore to the things that enable you to progress in life. The impact of missed opportunities compounds over time. The intersection of these challenges needs to be considered in the discussion on available solutions.

There were also critical needs in the experience of victims in the justice system at that time and I was pleased to work as a member of the Steering Committee that founded the HELP Clinics for victims of sexual violation.

As defence counsel, I also did a lot of criminal jury trials, many during the years of gang unrest in the 1970s and 1980s. I could see that many of the problems encountered by young dislocated Māori youth led them to gang membership and to exploitation in that setting. I also saw that, hand in hand with much criminal offending, was drug addiction of one form or another and this led to my involvement in the Odyssey House drug rehabilitation program as a Board member.

Later, in 1987, I was privileged to act as counsel assisting Dame Silvia Cartwright in the Inquiry into the treatment of women at Auckland’s National Women’s Hospital. This was a different legal setting, but it involved many similar strands of equity and fairness concerning access to fundamental human rights.  It was a long and harrowing inquiry.  It was significant because it provided independent insight into a lack of access to appropriate and adequate medical information for women at that time in some very vital respects.  In some cases, this resulted in a lack of optimal health care. There were some graphic examples of how these systemic deficiencies resulted in sometimes tragic outcome.

After that came an interesting change of direction, when I joined the Crown Law Office in Wellington and became Deputy Solicitor-General, which was a prosecution role. This role provided further insight into the various layers and complexities of our justice system, as well as exposure to the actors and decision-making processes central to legal and procedural reform.

Over many years in the law, and particularly during my early years in the courts, I have met and engaged with some truly wonderful New Zealanders, such as Dr Oliver Sutherland and the late Dr Ranginui Walker and Robert Ludbrook and Moana Jackson, to name but a few. They are people who have worked selflessly in the area of unmet legal needs and access to justice and, in particular, in relation to children and their right to a decent chance in life. There are also many others, including some who have become members of the judiciary.  These people have been inspiring in their principled devotion to ensuring that justice is a tangible and accessible right for the disadvantaged.

Other very special people who have had a significant influence on my thinking and approach to social and justice issues include the late Bishop Manuhuia Bennett and the late Apirana Mahuika. Those inspirational New Zealanders reinforced for me the importance of doing what you believe is right, no matter how unpopular that might be.

In short, I hope that what I bring to the panel is an amalgam of my experiences in the law and in human rights work, tempered by the influence of some wonderful humanitarians with whom it has been a privilege to work.

What could the future bring if there isn’t change?

If we don’t have a socially just society, inevitably we will have an unstable society. That is the risk.

It is trite to say that everyone is born equal. People are not born into equal circumstances for many different reasons, including disability.

Fairness is not about making everybody the same, but a just society must provide a fair opportunity for all of its members to live with basic dignity and to be able to realise their fundamental rights. Every society has its high achievers who create opportunities for others through their prowess and whose success results in real progress.  But if there are people who are left behind to a degree that creates huge divides in the community, that risks seriously undermining the social fabric and causing instability.

The social justice issues New Zealand faces are clearly not static and their dynamism is not amenable to any quick-fix or permanent solution.  It is necessary to constantly calibrate and recalibrate to keep abreast of the critical issues that cause imbalance.

Ensuring balance cannot be achieved by the simple expedient of making more and more money available for measures which treat the symptom and not the cause. Individual and intergenerational poverty and welfare dependence does nothing for the individuals concerned, nor for the community as a whole. Our efforts need to be directed towards building a heathier and fairer society in which fewer people need to rely upon the state for the basic necessities. The challenge is how to transition people off benefits (in a way that does not simply give rise to further hardship) and into lives that are productive and fulfilling. The ideal is to build a society that has no major requirement for access to criminal justice and no major rehabilitation issues.

Are there grounds for optimism?

Of course. If you don’t have optimism you might as well give up!

Some of the most significant advancements in our legal, social, and cultural history have been brought about by the those who have acted with optimism, courage, and a clear sense of purpose. We have no need to yet feel overwhelmed by the growing social divide.

We have a generally well-educated  society, a developed economy, and there is a strong democratic model at its heart and much that is exemplary in contemporary New Zealand society. We have, in the main, a huge amount of compassion and support for people who require it. We also value our global reputation as a nation of fair, open-minded, and innovative people. But while there is much to celebrate, we cannot afford to be complacent. The issues with which this panel is concerned are real and there is scope for a great deal more work at every level. Recognising that there is a growing number of New Zealanders for whom life is not naturally a level playing field, and working in earnest to address this, is absolutely critical.

View expert commentary: A fair go at access to justice by Dame Lowell Goddard