Finding the human side of the law
The Honourable Justice Joe Williams’ career path has been studded with ‘firsts’—the latest being his appointment to New Zealand’s Court of Appeal as its first fluent te reo Māori speaker.
Justice Williams was also the first member of his large extended whānau (Ngāti Pūkenga and Te Arawa: Waitaha, Tapuika) to pass School Certificate and obtain a law degree. Almost one year into his new role, Justice Williams reflects on his passage from an ‘angry and argumentative lad’ from Manaia in the Coromandel (via Hastings) to the Appeal Court bench, and how his time at Victoria University of Wellington shaped that course.
When your appointment to the Court of Appeal was announced in December last year there was a lot of commentary about the fact you were the first te reo speaker to be appointed to that Court. Has this been significant?
Well the great irony is my skills in te reo are pretty much redundant in this Court. That’s no reflection on the Court, but rather the nature of the work we do here. Te reo is used by registry staff to open and close the courts, as happens in other jurisdictions, and counsel will often introduce themselves in Māori. And there’s another sweet irony in the fact it’s almost exclusively Crown counsel who do it, and they do it as a matter of principle, and with pride, and that’s fantastic in my view. So, I do get to hear Māori during my working day but it’s not an ordinary language of discourse as it was for me at the Waitangi Tribunal and as a Māori Land Court judge, where exchanges between judges, who were often Māori themselves, and parties, are routinely conducted in te reo.
I do grieve the lack of Māori as a standard language of discourse in this jurisdiction and realistically I don’t think that will change in my lifetime. But small steps are being made and I am not going to complain about that. I have never felt push back, even among quite conservative colleagues. The good will has been palpable and that has made leadership in this area much easier than might otherwise have been the case. I know my fellow judges on this Court are committed to making greater use of te reo, and if you want a measure of that commitment it can be seen in the fact that they have collectively funded a teacher to assist them to improve their own skills.
Was this love of the law in your DNA, buried in your whakapapa somewhere?
Only in the sense that I was an argumentative brat. I was raised by my great aunt and uncle who I called Mum and Dad. He was a boxer who looked, and was built, like Mike Tyson. He worked as a brisket puncher in the freezing works. The brisket puncher’s job was to walk up and down the chain punching the pelt away from the carcass from the chest out. He’d retired by the time I was around 12, but it was clear he was revered as a strong man by the other butchers. Mum was a homemaker who worked incredibly hard and supplemented the family income with some seasonal picking jobs—tomatoes, asparagus, apples, peaches—whatever was going. She was the backbone of our family, really. Nobody in my entire whānau, and that’s hundreds of people, had even got School Certificate before me as far as I know. My siblings all left school at 15 and worked at the freezing works or in other labouring jobs.
Where I grew up being Māori meant you were poor and you were very second class. I don’t mean that in a pejorative sense. I am proud, very proud of who I am and where I came from. But I grew up used to being ‘othered’ all the time—not in the Māori community, but in interactions outside the Māori community. And although it was pivotal in many ways, my experience as a Māori scholarship boy at Lindisfarne College was not always positive. I was quite a disruptive student, and in trouble much of the time. I got into a fight with a fifth former on only my second day at school. It’s hard to go back and unpick what the drivers of that were
but I think I was a fish out of water, full of inarticulate anger. I still felt like an ‘other’. What Lindisfarne did give me, however, was the gift of expectation. They just expected that I would go on to tertiary study. But for that, I would probably have ended up as a freezing worker too.
And then it’s funny, I got to university and ran into all these middle-class Māori who were children of teachers or professionals who had a whole different perspective. Different expectations of themselves, and of the world, and it was the first time I had seen that really. It was quite eye opening for me to see that there was a whole other thing about Māori aspiration that had never occurred to me, and that changed my life fundamentally. University did two things for me—it connected kaupapa Māori, which I had been big
on since my teenage years, and the law. I had gone to Victoria University of Wellington to study Māori, enrolled in a Bachelor of Arts in te reo and then I started hanging out with the Māori students, many of whom were studying law—people like Shane Jones and Annette Sykes—and it just seemed to me what they were doing sounded pretty cool. Suddenly the world made perfect sense, and I had found a way of applying my skills to something that felt right to me.
Professor Alex Frame had a significant impact on me. He taught the Treaty and Māori land law long before it was cool and we would spend hours and hours together, him teaching, me listening, trying to get a feel for this big organism I now have a basic feel for. So did Sir Ken Keith, Professor Gordon Orr, John Thomas and Deborah Shelton (my small group teacher). There were lots of others, but these are people who stand out in my mind looking back and who helped shape my understanding of the law and my role in it.
I do love the law. The law can be a tool for great oppression or great good, and I would only be here if I believed its potential for great good is greater than its potential to wreak havoc. My teachers at Victoria University of Wellington deserve credit for fostering that conviction in me. On the Māori side, I had the privilege of learning at the feet of Ruka Broughton, a lecturer in Māori Studies. He was not so much my teacher as my tohunga. He opened up the whole world of tikanga Māori to my generation of students. He was one of the last remaining tohunga of the old school. He passed away many years ago but he is still spoken of in hushed tones at Victoria University of Wellington, and throughout the Māori world. He taught me about an ancient, yet still living, world of values and principles that made such sense to me. It was the perfect complement to the study of law. So the education I received at Victoria University of Wellington was bicultural and bi-legal. And it established my life path.
What have been some of the challenges in the transition from the High Court to the Court of Appeal?
I miss the oxygen of human beings in the trial courts. In the High Court, even in the laundered environment of legal process, people appear before you in the flesh, often in the most stressful circumstances imaginable, and you are required to make decisions about people’s lives that will often be the most important decisions any public official will ever make for them. To play a part in that human narrative is still the most powerful thing in that job and I have always thought of it as an incredible privilege—and have often felt I fell short of its demands.
The Court of Appeal does not have that. Here the humans are bleached out and we are stuck with what the American judge Justice Learned Hand called the “partial vacuum of the appellate record”, and I really feel that. But the advantage is that the issues are sharper, and the opportunities to interpret, build or evolve the law are present every day in your work in a way you would get only occasionally in the High Court. So, the price is worth paying.
As a High Court judge you were a lone decision-maker. How have you adapted to the more collegial approach in the Court of Appeal?
Each member of the Court must still bring their independent mana when making decisions, but yes, the ability to work collegially is one of this Court’s real advantages. I like the civility of judicial process. If we disagree we do so respectfully and we are careful about how we do that, which makes disagreement easier. So that part of the job is neat and it is much less lonely than the High Court in that regard. The downside is that you must convince at least one, and often two other judges, to your point of view, and the people you are trying to convince are some of the brightest and hardest-working people in the country.
Looking back now from the vantage of the bench, do you have any advice for today’s law students?
Not advice, no, but perhaps a couple of observations from my own experience. When it dawned on me that law is a way of thinking, not a body of dogma, it became much easier to do. It is a discipline, it is a tool of human frailty. So remember that law is a way of thinking. Being a judge reminds me of this every day.
Law’s words are power. It is power written down on a page that impacts on the lives of ordinary people. It is not a fact scenario or just an equation for solving a problem. That’s the magic in it. The discipline of the law requires you to think from an equations
perspective and then to find the human in it. Law isn’t law without both of those elements, and certainly judging isn’t judging without both of those elements, so remember that. And I think the most important thing I learnt at law school is ‘it’s not the answer, it’s the question’. That might sound a bit enigmatic but it’s completely true and the most practical lesson I learnt. Find the right question and the answer will come. Most people make mistakes when they ask themselves the wrong question. That was good advice to me from my teachers, and those basics work just as much for me as a judge as they did for me as a law student.