Kua hinga te totara I te wao nui a Tane
(A great Totara tree has fallen in the forest of Tane)
The recent death of Sir Owen Woodhouse – war hero, legal luminary, great thinker, social reformer and humanist – has caused many in New Zealand and afar to stop and reflect on the contribution of this great man to their community and their lives. Like the Maori proverb, or whakatauki, the falling of a large tree in the forest, Sir Owen’s death leaves a wake.
Sir Owen’s legacy of social reform and judicial activism is legendary, a national treasure. His impact on people was profound, positive and enduring. It makes you think about the nature of great leaders. What makes them special? And what gets in the way of each of us doing more to help build a stronger community and support those in need?
Sir Owen inspired people across all generations. He was professionally generous, polite and warm. He connected people. Many are wiser and deeply richer for him being so. I am fortunate to be one of them, even though our connection was in his later years. I drew from the well, professionally and personally.
Sir Owen was a man who lived for others. Former Prime Minister, the Rt Hon Sir Geoffrey Palmer QC, a mentee, recalls Sir Owen’s compassion for people as his most salient characteristic. His gift of friendship, Sir Geoffrey eulogised, “… inspired enormous loyalty and affection among those with whom he interacted and worked.” It reflected his earlier comments to a journalist that Sir Owen had “…great human compassion, a wonderful social conscience and a great feeling for people.”
Praise has flowed from leaders across the spectrum of New Zealand politics. Descriptions of Sir Owen as the ‘father’
of New Zealand’s Accident Compensation Commission (the ACC) reflect the respect he engendered. The report that led to
the ACC’s formation was the product of a Royal Commission of Inquiry into personal injury in New Zealand. A ground-breaking legal reform, it was described by Sir Geoffrey Palmer as brilliant, innovative and revolutionary.
Sir Owen recommended the introduction of universal coverage for personal injury around the clock and one which preserves the no-fault principle for the payment of compensation. He designed, with two co-authors, a statutory scheme of support providing rehabilitation and compensation. As a practical response to the toll of personal injury, he thought people affected deserved “…a co-ordinated response from the nation as a whole.” Describing the then common law system as a lottery, he lamented, “Such a fragmented and capricious response to a social problem which cries out for co-ordinated and comprehensive treatment cannot be good enough. No economic reason justifies it.”
40 years after the ACC’s establishment, a University of Auckland symposium marked the occasion. Sir Edmund Thomas, a judge of New Zealand’s Court of Appeal, recounted his 1969 assessment of the Woodhouse report:
“This beautifully crafted Report is the work of a man with a deep-rooted social conscience fully aware of the needs and aspirations of the common man and woman. His Report reflects his vision of a more humane, harmonious and responsible society. As such, it represents the most far- reaching exhortation to the community to engage significantly with those who are less fortunate since the enactment of the Social Security Act in 1938. The comprehensive and unified scheme which he advances to replace a fragmented and capricious response to the problem of personal injury is conveyed with clarity, cogency and cohesiveness that few, if any, authors could emulate.”
It was fine praise. In closing the symposium, Sir Edmund, once a Visiting Fellow at the Australian National University, commented:
“Nothing that has transpired can diminish the brilliance of the Report itself and the profound impact it has had on social, political, legal and economic thinking. Its enactment by a Government subjected to hostile pressures from vested interests has not been replicated anywhere in the common law world. Elsewhere, self- interested pressure groups have proved too strong and too vocal.”
Interestingly, Sir Owen himself felt greater public value was derived from his earlier work, with others, on a committee of enquiry that led to the fluoridation of New Zealand’s water supply, a significant and initially controversial public health reform.
A series of New Zealand governments have played with the structure, programs and impact of the ACC over the years since its establishment in 1972. Each iteration interprets Sir Owen’s architectural intent. Sir Owen’s death has generated significant comment and reflection on the journey and public value of the ACC and the work of its people. The debate will continue in earnest as we approach the 50th anniversary of the delivery of the report of the Woodhouse Royal Commission in mid-December 1967.
The Australian chapter of Sir Owen’s journey dates from the early 1970s. His proposed radical reform of New Zealand’s accident compensation system had sparked interest and intrigue from the then opposition leader, the Hon E.G. Whitlam, QC. In government, Mr Whitlam thought ‘it time’ to boldly task Sir Owen to similarly define how a national insurance-based scheme would support people seriously affected by accident, illness or disability. It was reflected in E.G. Whitlam’s 1972 policy speech where he undertook to establish a national compensation scheme. Sir Owen was supported in his work by another veteran of the Second World War, the Hon Justice Charles Meares of the New South Wales Supreme Court.
From 1972 to 1974, the ground work of research, planning and community consultation paved the way for the Woodhouse report to be tabled. Sir Geoffrey Palmer was plucked from his teaching post in Charlottesville, Virginia to assist Sir Owen in his work on the Australian plan. Sir Geoffrey recently described it as ‘a tough time’ as they encountered entrenched and strident resistance across Australia. It’s a period nicely summarised in Mark Robinson’s 1986 review of Australian accident compensation, but Sir Geoffrey’s earlier account from 1979, Compensation for Incapacity, offers the richness of his personal insight.
Like in New Zealand, two stages were envisaged for the Australian reform. The first part, protection for injury from accident, led to the creation in New Zealand of its Accident Compensation Corporation. The second part – protection from illness or disability – languished and remains so.
E.G. Whitlam insisted that both elements – accident and illness – be incorporated from the outset. That led to inevitable delay as the scale of the reform was breathtaking. Its size, complexity and cost, controversy and impact needed careful analysis, debate and reflection. Eminent actuary Professor Richard Madden, then a statistician, was part of the team working on the reform led by the luminary, Professor John Pollard, who went on to his influential career at Macquarie University.
E.G. Whitlam described the final report in his narrative, The Whitlam Government 1972- 1975, in the following terms:
“The judge’s report was one of the most convincing and stimulating reports ever presented to the Parliament.”
Enabling legislation was drafted and passed the lower house in October 1975. Senate committees struggled with the cost implications as they worked through the issues late in the spring of 1975.
The dismissal of the Whitlam government in late 1975 meant the Parliament was prorogued. Lost in the controversy was the now important realisation that all bills had lapsed. A conservative caretaker government was elected but it had no policy appetite for Sir Owen’s ideas. He recounted late last year how, diverting his return to Auckland from business in Geneva, he stopped by Canberra to meet the new Minister responsible for social welfare programs, Senator the Hon (later Dame) Margaret Guilfoyle, but to no avail.
While Sir Owen’s ideas were shelved and the project team disbanded during 1976, the Hon Lionel Bowen and E.G. Whitlam introduced a private member’s bill in February 1977. The Fraser Government did not allow a vote.
It’s clear that the impact of the Woodhouse thinking pervaded many of the accident compensation reforms to emerge in Australia over the last four decades. For example, Victoria’s then Motor Accident Board was established in 1974 to provide, for the first time, no-fault compensation arising from car crashes. It later morphed into today’s Transport Accident Commission.
More recently, the establishment of the National Disability Insurance Scheme has brought to life the concepts of ‘that decent fellow feeling’ embodied in Sir Owen’s reforms.
New Zealand’s current Prime Minister, the Rt Hon John Key described Sir Owen as a man whose life exemplified public service. It’s truly so. Hearing the wonderful tributes to Sir Owen’s leadership and public influence at his funeral service helps one reflect on purpose and recommit to public service. Equally inspiring were the eulogies from his family that spoke of his impact, the father, the wise and caring man whose sage advice deeply shaped so many in his family and community.
Sir Geoffrey Palmer eulogised that what we acknowledge and celebrate about Sir Owen Woodhouse was, “…not merely a good life, it was a great one.” Its greatness was captured nicely in the reflections of the Chief Justice, the Rt Hon Dame Sian Ellis when she spoke of Sir Owen’s “deep engagement in mankind”.
As Sir Owen would write in his valediction to those dear to him, “Be kind and good”. So we will, sir, knowing the things that are right and how they must be done. Vale, Sir Owen.
More work by Paul O’Connor:
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