Changing of the guard at the Supreme Court
It was fitting that 8 March – International Women’s Day – was chosen for the final sitting of Chief Justice Dame Sian Elias.
Not only was Dame Sian appointed by New Zealand’s first female Prime Minister, Dame Jenny Shipley, but she was one of only a handful of women to enter law school in the mid-1960s.
The outgoing chief justice referenced this in her final address to the court.
She and former Attorney-General Margaret Wilson entered the University of Auckland’s Law School in 1966. “Six women enrolled on that day in a class of 200,” she recalled.
“Some of our lecturers thought civilisation was coming to an end. On this International Women’s Day, I wondered what they would have made of the way we are now and the fact that at this ceremony all the speakers are women – and that is not by design. It is by virtue of the offices they hold.”
Dame Sian singled out Wilson for special acknowledgement, describing her as “an Attorney- General I worked with for some years and who brought about the establishment of the Supreme Court in which we sit”.
The Supreme Court, she said, was set up at the apex of our court system in part to ensure New Zealand didn’t lose sight of its traditions.
“It is important to be respectful of our own tradition and where it needs to adapt if our legal order is to be fit for purpose.”
She noted there were differences in an apex court and other parts of the court system. “Some of them we have still identifying and working through.
“A final court should not sleepwalk in its function. It has to be conscious always of how this bit of law fits with the architecture of the whole. It has to endeavor to make statutes and common law march together and be coherent. It has to believe in its role. If it cannot explain what it is doing and why, who will?”
Turning to the need to “be ambitious for a just society”, Dame Sian said New Zealanders had always had high expectations of the law.
“Much of the talk at Waitangi was about the expectations that law will yield justice. A constant theme throughout our history has been the confidence that the law will yield justice. That sets a high expectation for any legal system to live up to….
“It is impossible to explain why justice matters. It is a concept essential to the human spirit. But it is fragile. If the law is seen as discriminatory and unequal, if we do not value the principles which underpin our common law tradition, we risk losing law…
“It is no use having an independent profession or independent judiciary if few can afford to get to court or obtain legal representation… [A legal system] is unlikely to be fit for purpose if judges and lawyers have no insight into the lives and legal needs of the communities they serve.”
Improving access to justice is a top priority for incoming Chief Justice, Dame Helen Winkelmann (LawNews 15 March).
“Ideally, all should be able to seek justice before the courts,” Dame Helen said in her swearing-in on 14 March.
“But there are significant and troubling obstacles to prevent the achievement of this ideal. Without knowledge of the law, many do not know they have a problem with which the law can help. The cost of legal representation is so great that it is only the well-to-do who can afford a lawyer to represent them in court….
“The solution to many of these problems lies beyond the control of the judiciary. But as Chief Justice, I can use occasions such as this to highlight the issue. And where I can be of assistance, I will support the work of the profession and the community in removing the barriers that stand in the way of those who would seek the shelter of the law.”
It is important that judges stay in touch with their communities, Dame Helen said.
“Their decisions often have life-changing consequences. Judges work in an increasingly diverse society where there are no easy assumptions to be made about beliefs, behaviours and backgrounds.”