Chief Justice Helen Winkelmann sworn in

Direct and astute, with formidable intelligence and the confidence to speak her mind.

Justice Winkelmann

That’s the way former colleagues speak about Helen Winkelmann, New Zealand’s new Chief Justice, who was sworn in yesterday.

“If something needs saying, she will say it,” says an Auckland barrister who worked alongside Justice Winkelmann before she was appointed to the High Court bench in 2004 and, in recent years, has appeared in her court.

“Helen has no trouble whatsoever in speaking her mind.”

He remembers her as a “cherished junior barrister, who never went into any situation unprepared and without having her own answers to key questions”.

Others describe the new chief as “self-assured but not haughty” and praise her “mental candour and concentration”. And those who worry that Justice Winkelmann might harbour dangerous ideas about judicial activism – whatever that might be – can rest assured. As another former colleague puts it, “she is not a lawmaker”.

Justice Winkelmann herself says she’s not sure exactly what judicial activism means, apart from judges acting non-judicially. “And I don’t see that as a big problem with New Zealand’s judiciary,” she says.

“I think our judiciary is very mindful of its role. Sometimes it’s said when judges make law, they’re being judicial activists but that can’t be so since judges make law every single time they issue a decision because we’ve got a common law system. Each time a judge issues a decision about the meaning of a statutory provision, that’s making law so that can’t be judicial activism.

“Statutory interpretation is a large part of what the courts do. I don’t think applying standard common law methods to interpretation is judicial activism. At times, Parliament confers quite wide discretions on the judiciary and the judiciary has to exercise those discretions but I think, by and large, judges do that in a principled way using judicial method. When they don’t, they’re amenable to appeal.”

For Justice Winkelmann, claims of judicial activism may arise when judges step outside the established methods of common law reasoning and impose their own view.

“That’s something you’d expect to be corrected but I don’t see it as a significant issue in New Zealand. You don’t hear about [judicial activism] a lot except when someone doesn’t like a decision.”

In her 2014 Ethel Benjamin address, the judge was clear about where she stood.

“The role the courts play in our society is not generally to lead broad and bold social change,” she said. “Rather, it is to work out the just outcome in a particular case. Teasing out, and applying, how a statute or principle applies to the citizen. This is where justice operates most meaningfully.”

On her judicial style, Justice Winkelmann says she favours forthright communication. “I think honest and direct communication is very important in any situation. I think you have to tell people what your expectations are and what you’re trying to achieve, and it’s very good to have a shared vision. That’s probably the main thing – to try to achieve a shared vision.

In a wide-ranging interview with LawNews, the new Chief Justice shares her views on a wide variety of legal issues, including the ways justice can be made easier, cheaper and more accessible (particularly in civil litigation), the problem of long-term systemic disadvantage for Maori and other low-income groups, the critical role courts play in our communities, and how she intends beefing up training and education for judges and other members of the legal profession.

How would she like to be remembered?

“I hope my legacy to be that I led a judiciary which understood its community, was connected to its community and served its community. I’d like it to be that all of New Zealand could seek justice before the courts and, if you combine those two, you truly would have a court system that served its community in this country.” 

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