Reflecting who our courts serve

There’s some way to go before our New Zealand police and courts are staffed by men and women who, overall, reflect the communities they serve. Sadly, as with our schools and hospitals for instance, there’ve been too few bringing Māori and Pasifika understanding, style and influence. The good news, though, is that there’s been a growing recognition of that failing and its consequences. And the recent appointment of Robyn von Keisenberg as a Family Court judge is just one example of the efforts to help overcome the imbalance in the judiciary.

 

Kia ora, Robyn. There was a period, wasn’t there, more than 100 years ago, when Germany had Sāmoa as a colony or protectorate? And one result of that relationship is that there’s still any number of Sāmoan families bearing German surnames. But I understand that your von Keisenberg forebears came directly from Germany.

Yes. That’s my father’s whakapapa. His grandparents arrived from Germany, probably in the late 1880s and settled in Masterton. And where the Sāmoan connection came in was when, in World War One, my dad’s father, Arthur von Keisenberg, enlisted in, or was drafted into, the New Zealand army. That was after the authorities decided that New Zealanders with a German whakapapa weren’t a threat. 

In the course of the war, my grandfather was posted to Sāmoa. And, more than 20 years later, because of the connections he made there, my dad Bill met my mum, Anne Mann. She was born in Apia and brought up in Apia. And she came to New Zealand when she was 19, just before the end of World War Two.

She arrived here in 1945 on the Matua, which stopped at all the Pacific islands along the way to New Zealand. She had to work in factories at first, as part of the war effort, and then she trained as a hairdresser. Members of her family eventually came out, too. Her mother, Melanie Mann (nee Fidow), who was born in Saufoto, Savai’i, arrived in in 1954. In fact, all her family were reunited here in the ‘50s.

My mother travelled frequently to and from Sāmoa for many years until the travel became too hard. We had a lot to do with her family, so fa’a-Sāmoa was very much part of my ‘afakasi upbringing.

My father was an engineer. Both parents were very much alive to the need for us four children to be well educated. My mother often used to rue the disappointment of not being able to get an education herself. The war didn’t help obviously. But my father has two degrees, in engineering and physics.

Where did you get your education?

I grew up in Auckland. We went to St Joseph’s, a tiny wee Catholic school in Ōrākei that was run, at that time, by the Brigidine nuns. They were very focused on the three Rs, so we got a great start. Then I went off to Ponsonby, to St Mary’s College, which provided an incredibly good formal education, including Latin, French, German and history.

From when I was 13 or 14, I always fancied the idea of being a lawyer. That was when Perry Mason, in his American lawyer show, was often on TV — always doing good deeds for others and getting people out of tight spots. Of course, that doesn’t bear any resemblance to what legal practice was, or is. But I liked writing, too. So that, along with Perry Mason and his problem solving, meant that law ticked the boxes as a career for me.

My sister, Rosemary, who was a year ahead of me, had gone off to architecture school. I started the seventh form. But, by that time, I didn’t want to do any more history or Latin. I just wanted to get started on my degree. So I left school after a month and went to university in March 1974 as a 16-year-old. And, within four years, I had my degree.

You would’ve had that amazing Sister Mary Leo at St Mary’s. 

Yes, Sister Mary Leo was there. We all had to attend singing classes. My sister was part of the group that had singing lessons with her. But that wasn’t my thing, although we used to do a concert every year and all of us had to sing. She was our choirmaster and an extraordinary woman.

Once you got into your legal studies at law school, were there lecturers who got you thinking critically about New Zealand’s laws and their failings?

At 16 and 17, having had very little exposure to serious human conditions, most of what we studied was completely foreign to me — papers like criminal law, contract law, constitutional law and legal systems. I didn’t come from a legal family. And I didn’t know any lawyers, so it wasn’t as if, by osmosis, I’d taken a bit of that legal stuff on board. I was a blank page.

So when you ask me who were the influential people in my student life, to be honest, I was just trying to keep my head above water. This was the early years of the Socratic method of teaching law and we had some incredibly bright lecturers and professors. 

But, in the 1970s, standing up and speaking your mind wasn’t part of our education system. That came in later. All of the teaching methods at law school were foreign to me and quite daunting. So I had some catch-up to do. By the second year, though, I’d got into the swing of it.

There were standout lecturers. I took family law because I admired Pauline Tapp. Another important figure was Dr David Vaver. But I don’t recall that there were too many trying to change things. What had changed, just as I started, was that tort law had undergone a major change when accident compensation was introduced in New Zealand. 

And a big change that came when I was at law school was the introduction of the Property Relationship Act in 1976. That changed things radically. 

But I wasn’t trying to make a statement. I was simply trying to learn and, hopefully, then practise law.

It was heady times socially in New Zealand, with the anti-Vietnam marches, Whina’s land march in 1975, followed up soon after by the Bastion Point stand. Māori were going through a difficult period that’s now referred to as a renaissance. There was poor treatment, too, of Pasifika people who were arriving en masse at that time to provide the labour for our factories. When did you realise that there were aspects of the law that were doing a poor job of serving our Māori and Pasifika people?

I’d grown up with all that because my school, St Joseph’s, was a feeder school for Ngāti Whātua in Ōrākei. The marae was very much part of our landscape. I was educated with Māori children and some Pasifika. 

I never thought anything of it. That’s the oddest thing. Because it was so much part of your everyday life in the playground, and I had a Sāmoan mother, it never dawned on me until much later. I certainly remember the land march. And my father was often lending a hand at the marae. For instance, helping on the board and fund raising.

I remember joining the Vietnam peace march. My mother was horrified that we had peace signs from the Cook Street market around our necks. But that was our protest. 

I often felt I was just on the fringes because I was about 18 to 24 months younger than most of the students in my year, so I was just getting on with it. I don’t remember Māori incarceration rates being discussed even in the criminal law and criminology courses I did.

While there was never much discussion about race, the hot topic was gender equality. The women lecturers like Margaret Wilson and Pauline Tapp were very outspoken on women’s rights. I did a paper with Margaret on women and the law. Pay equality and equal access to jobs were the main topics of debate.

I’m pleased, Robyn, that you decided to specialise in family law — focusing on the care of children, mental health proceedings, personal property rights and such like. What steered you in that direction? 

What often happens in life is that things fall in your path. I don’t know that I especially planned to go in that direction. As a matter of fact, I didn’t practise law at all for the first five years after graduating.  

As a student, I got a Queen Elizabeth II Scholarship in my second to last year which meant working for Ceramco in New Lynn. So I worked there to get a bit of life experience. Ceramco was a multinational company making Crown Lynn pottery and bricks and pipes.  

They sent me to Sydney and it was while I was working there, after three years or so, that I decided I wanted to practise law. My first law job was with a large firm in Sydney, and I worked in the personal injury litigation area.

That had no bearing on anything in New Zealand because, with the ACC, we’d got rid of personal injury litigation. I did insurance law, commercial law, too, and I discovered that wasn’t what I wanted to do. But it helped me decide on the law area where I wanted to work.

I returned to New Zealand and got a job in South Auckland with Rice Craig, a large firm based in Papakura. As a junior, you were told what you needed to do. We were automatically given family law files. We also did some criminal law. 

So, for years, I did criminal law, youth courts, legal aid and work as a duty solicitor. In effect, you had to do it all when I started, almost 40 years ago. 

Doing criminal work taught me that many offenders had serious mental health issues or substance issues. In those days, there weren’t the systems and funding like we have now. Now there are alcohol/drug courts, and a pilot has just started on mental health and disability courts.

Then, not long after I left Rice Craig, I joined a small firm in Ponsonby. My boss was one of the first district mental health inspectors and she was the person who would investigate complaints and do checks. 

Through her, the Auckland District Law Society started a roster of lawyers to assist patients on committal — those where an application had been made to compulsorily treat them. I was one of the first people on the roster, probably in 1990. The Mental Health Act changed but the rosters remained. We still have them. And I think that’s a great system.

Because of that background, people in the profession would contact me to help with mental health cases. Then the PPPR (Protection of Personal and Property Rights) Act came into force, so that area of the law is certainly growing. Because our population is ageing, it’s becoming quite complex to determine who has the power. You’d think it’d be fairly streamlined, but it’s not. There are many disputes between family members about who’s controlling the money or who’s making the decisions on healthcare for the vulnerable person. 

It was from that involvement that I got appointed to the Mental Health Review Tribunal. That tribunal deals with people who already have a compulsory order and who are applying to be released from the act. There’s a psychiatrist, a community member and a legal member on the tribunal and they decide on whether the patient is fit for release.

You talk about the disparity in representation. Well, I stopped working in criminal law years ago because it wasn’t compatible with family law. What became very obvious in mental health work is the over-representation of Māori. I don’t think the stats show an imbalance for Pacific Island representation but certainly they do for Māori.

I got involved with family law because I enjoyed the work, it’s interesting, and I was always trying to find a solution for some of these issues.

Congratulations on your appointment to the bench, Robyn. This is another important responsibility for you.

I’ve been in practice for many years. I’m looking forward to the change in role — and its challenges. 

You’re going to be based in the Auckland Family Court. What are some of the challenges ahead of you and how do you anticipate your work as a family lawyer will help?

The common thread in notes that I’ve had following my appointment, is a reference to my “vast experience”. That’s just code for being old. I’ve certainly been around for a long time. But, even though you’re experienced, you still need to keep your mind open and to stay fresh. You have to analyse the situation and, within the framework of the law, find a solution.

I have little doubt that my years of experience with children, vulnerable people, poverty and disabilities, all of which are the day-to-day fodder of the Family Court, will help. 

I want to wish you well, Robyn, with that work. And with the prospect, perhaps, of one day seeing, our Polynesian structures merge with the Westminster system. It’s encouraging to see Māori and Pasifika tikanga and cultural values permeating the legal scene. Do you feel we’re heading in the right direction as we try to take the best from the two systems and honour the intention of the Treaty of Waitangi?

It’s an interesting time to be part of the law. I think the merging of Polynesian and Pākehā values is fantastic. And it’s heartening to see the diverse appointments to the courts this round. I guess they’re to reflect the community served by the court.   

Hopefully, once it takes hold, people won’t even notice. It will become just part of the decision-making process as it’s been for some time. I think we’re on the right path.

Have your kids followed in your legal footsteps or opted for engineering?

My son Nicholas did engineering. He was accepted for law school but I persuaded him that if you can do maths you can do law later. He’s very analytical. He likes the written word. He did engineering and then a master’s degree in management — and he works for an accounting firm. Our daughter Rebecca does PR for David Jones in Melbourne. She started law but hated it. And of all the grandchildren in the wider family, not one has done law. 

(This interview has been edited for length and clarity.)

© E-Tangata, 2020