Feminist Judgments of Aotearoa New Zealand: Te Rino: A Two-Stranded Rope

by Elisabeth McDonald, Rhonda Powell, Mamari Stephens, Rosemary Hunter

Overview

This edited collection asks how key New Zealand judgments might read if they were written by a feminist judge. Feminist judging is an emerging critical legal approach that works within the confines of common law legal method to challenge the myth of judicial neutrality and illustrate how the personal experiences and perspectives of judges may influence the reasoning and outcome of their decisions. Uniquely, this book includes a set of cases employing an approach based on mana wahine, the use of Maori values that recognise the complex realities of Maori women's lives. Through these feminist and mana wahine judgments, it opens possibilities of more inclusive judicial decision making for the future.

'This project stops us in our tracks and asks us: how could things have been different? At key moments in our legal history, what difference would it have made if feminist judges had been at the tiller? By doing so, it raises a host of important questions. What does it take to be a feminist judge? Would we want our judges to be feminists and if so why? Is there a uniquely female perspective to judging?'
Professor Claudia Geiringer, Faculty of Law, Victoria University of Wellington

'With this book, some of our leading jurists expose the biases and power structures that underpin legal rules and the interpretation of them. Some also give voice to mana wahine perspectives on and about the law that have become invisible over time, perpetuating the impacts of colonialism and patriarchy combined on Maori women. I hope this book will be a catalyst for our nation to better understand and then seek to ameliorate these impacts.'
Dr Claire Charters, Associate Professor, Faculty of Law, University of Auckland

'The work is highly illuminating and is critical to the development of our legal system ... It is crucial, not only for legal education, so that students of the law open their minds to the different ways legal problems can be conceptualised and decided. It is also crucial if we are going to have a truly just legal system where all the different voices and perspectives are fairly heard.'
Professor Mark Henaghan, Dean of the Faculty of Law, University of Otago

'I believe this project is particularly important, as few academics or researchers in New Zealand concentrate on judicial method. I am therefore hopeful that it will provoke thoughtful debate in a critical area for society.'
The Honourable Justice Helen Winkelmann, New Zealand Court of Appeal

Product Details

ISBN-13:	9781509936960
Publisher:	Bloomsbury Academic
Publication date:	03/19/2020
Pages:	576
Product dimensions:	6.69(w) x 9.61(h) x 1.16(d)

About the Author

Elisabeth McDonald is Professor of Law at University of Canterbury, New Zealand.
Rhonda Powell is Senior Lecturer in Law at University of Canterbury, New Zealand.
Mamari Stephens is Senior Lecturer in Law at Victoria University of Wellington, New Zealand.
Rosemary Hunter is Professor of Law and Socio-Legal Studies at Queen Mary University of London.

Table of Contents

Foreword Hon Justice Susan Glazebrook Judge Caren Fox v

Preface ix

Acknowledgements xi

Notes on Contributors xvii

Glossary xxi

Part I Introducing Te Rino: The Feminist Judgments Project Aotearoa

1 Ko Nga Muka o Te Rino: Threads of the Two-Stranded Rope Rhonda Powell Elisabeth McDonald Mamari Stephens Rosemary Hunter 3

2 Law in Aotearoa New Zealand Mamari Stephens Rhonda Powell 15

3 Introducing the Feminist and Mana Wahine Judgments Rosemary Hunter Mamari Stephens Elisabeth McDonald Rhonda Powell 25

Part II Rights, Equality and Relationality

Civil Rights

4 Taylor v Attorney-General [2015] NZHC 1706 Commentary: Disengaging the Disengaged Margaret Wilson Julia Amua Whaipooti 53

Judgment Mihiata Pirini Lisa Yarwood 62

5 Brooker v Police [2007] NZSC 307 Commentary: Rights Balancing Rejected Ursula Cheer 73

Judgment Janet McLean 79

Social Welfare

6 Ruka v Department of Social Welfare [1997] 1 NZLR 154 Commentary: Defining a Relationship for the Purposes of State Support Catriona MacLennan 87

Judgment Mamari Stephens 94

7 Lawson v Housing New Zealand [1997] 2 NZLR 474 Commentary: State Housing, Market Rents and Families Facing Eviction Dean R Knight 103

Judgment Natalie Baird 111

Medical Decisions

8 Scales v Attorney General [2015] NZHC 1239 Commentary: The Potential Interface of Gender and Vulnerability in Legal Contexts Kate Diesfeld 125

Judgment Joanna Manning 134

9 Hallagan v Medical Council of New Zealand HC Wellington CIV-2010-485-222, 2 December 2010 Commentary: Whose Choice, Whose Conscience? Colin Gavaghan 143

Judgment Rhonda Powell 151

10 Re W [PPPR] ('Re Williams[PPPR]') (1993) 11 FRNZ 108 Commentary: Caring for the Pregnant Woman Rosemary Hunter 171

Judgment Holly Hedley 177

Family Relationships

11 Quitter v Attorney-General [1997] NZCA 207 Commentary: Same-Sex Marriage and the Marriage Act Wendy Aldred 187

Judgment Clare Abaffy 193

12 AMO'H v AJO'H ('Caldwell v Caldwell') [2010] NZFC 48 Commentary: The Case of the Missing Woman Erin Ebbortt 205

Judgment Ruth Ballantyne 211

Relationship Property

13 V v V [2002] NZFLR 1105 Commentary: A Fair Share of the Pavlova? Vivienne Crawshaw Khyati Shah 225

Judgment John Adams 234

14 Lankow v Rose [1995] 1 NZLR 277 Commentary: Property Division on the Breakdown of a De Facto Relationship Nicola Peart Kyla Mullen 245

Judgment Mark Bennett 252

Employment

15 Director of Human Rights Proceedings v Goodrum [2002] NZHRRT 13 Commentary: The Challenge of Proving Discrimination in the Face of Bias and Gender Stereotyping Gayathiri Ganeshan Sam Bookman 265

Judgment Selene Mize 271

16 Air Nelson Limited v C [2011] NZCA 466 Commentary: She Said, He Said Annick Masselot 287

Judgment Jenny Catran Martha Coleman 294

Commercial Relationships

17 Stephens v Barron [2014] NZCA 82 Commentary: Should Company Law Principles Affect Duty of Care Analysis? Liesle Theron 309

Judgment Victoria Stace 316

Part III Land and Natural Resources

Customary Rights

18 Bruce v Edwards [2002] NZCA 294 Commentary Taonga Tuku Iho: Jacinta, Ruru 329

Judgment Kerensa Johnston Mariah Hori Te Pa 336

19 Waipapakura v Hempton (1914) 33 NZLR 1065 Commentary: Whitebait for the People John Dawson 347

Judgment Emma Gattey 354

Environment

20 Squid Fishery Management Company Ltd v Minister of Fisheries CA39/04, 7 April 2004 Commentary: An Ecofeminist Approach to the Impact of Fisheries on Sea Lion Mortality Joanna Mossop 363

Judgment Nicola Wheen 370

21 West Coast ENT Inc v Butter Coal Ltd [2013] NZSC 87 Commentary: Broadening an Ethic of Care to Recognise Responsibility for Climate Change Catherine Iorns 389

Judgment Estair van Wagner 398

Part IV Crime

Sexual Offending

22 R v S [2015] NZHC 801 Commentary: Reasonable Grounds to Believe an Unconscious Woman is Consenting? Elisabeth McDonald 425

Judgment Paulette Benton-Greig 432

23 R v Sturm [2004] 1 NZLR 570 Commentary: 'Well, What Did You Think Would Happen?' Cassandra Mudgway 447

Judgment Sarah Croskery-Hewitt 455

24 Vuletich v R [2010] NZCA 102 Commentary: When is Sexual Violence Against Adults Unusual? Elisabeth McDonald 463

Judgment Carissa Cross 469

Defences

25 Police v Kawiti [2000] 1 NZLR 117 Commentary: Kawiti at the Centre Julia Tolmie Khylee Quince 481

Judgment Khylee Quince Julia Tolmie 489

26 R v Wang [1990] 2 NZLR 529 Commentary: Finding a Plausible and Credible Narrative of Self-Defence Lexie Kirkconnell-Kawana Alarna Sharratt 497

Judgment Brenda Midson 504

Sentencing

27 R v Shashana Lee Te Tomo [2012] NZHC 71 Commentary: The Truth About Sentencing Maori Women Linda Hasan-Stein Valmaine Toki 513

Judgment Valmaine Toki 522

28 R v Taueki [2005] NZCA 174 Commentary: Sentencing Guidelines for Domestic Violence Yvette Tinsley 531

Judgment Frances Gourlay 539

Editorial Reviews

"Feminist Judgments Aotearoa is a fascinating, sometimes confronting, but ultimately extremely rewarding read which challenges us to see other legitimate possibilities in the law." --LawTalk

"The judgments and the commentary that precede them, are a powerful means of teaching us to see a legal case through a different lens, helpful both in the classroom and for established researchers, practitioners, and members of the judiciary... This collection offers an opportunity to step back and survey the land of the law, and to do so with fresh eyes - a valuable opportunity when many are practising or researching in highly specialised areas." --New Zealand Women's Law Journal

From the Publisher