Working from her office above the Supreme Court sits Dame Sian Elias, the Chief Justice of New Zealand. Sian Elias was appointed as the Chief Justice in 1999 and was the first woman in New Zealand history to be given that title. Since the creation of the New Zealand Supreme Court in 2005, she has worked, as its head, to develop the court into being an important part of our constitutional framework. The Chief is calmly assertive in her opinions. She seems relaxed and at ease throughout the interview. Salient sat down with her to talk about New Zealand’s justice system and what needs to be done to improve it.
Let’s start big: what do you think the role of the judiciary is in the constitutional system of New Zealand?
It is the maintenance of the rule of law. And the determination of disputes civilly and, in the criminal jurisdiction, determining responsibility. But the constitutional role is principally exercised through the supervisory function of judicial review1 to check arbitrary power.
In the past, you have said that there may be certain instances where in order to protect the rule of law, you would interpret laws in ways which may be contrary to what Parliament wanted. Would you explain that?
I don’t see that there is a clash between parliamentary sovereignty2 and judicial authority or judicial responsibility. I do think that the tensions in the political system are more between the judiciary and the executive, because the judiciary really acts to protect the laws established by Parliament. But there is a controversy about whether in interpreting legislation, which is the judicial responsibility, the aim is to try to work out what the intent of Parliament is, or whether one looks at the text of the statute and tries to work out the purpose of the statute. And in some respects, trying to work out what Parliament intended is often not a very worthwhile exercise, because it is very difficult to ascertain that. Parliament, of course, always has the final word, because if it doesn’t like the interpretation, it can change the legislation.
Sometimes, there are laws that definitely exist on the books but aren’t applied equally or fairly. For example, there are certain statistics that suggest that Police haven’t been prosecuting for possession of marijuana as strictly as they had in the past. Do you think that use of discretion is appropriate?
We have always had discretion. We have to have discretion in all fields of executive action, including Police, but no discretion is unlimited. The role of the courts is to maintain discretion within proper boundaries. The courts have been very reluctant to supervise prosecutorial discretion, which is what you are talking about, but they do have the authority to supervise it. So if a discretion is exercised arbitrarily or unreasonably or exceeds the power and latitude of the discretion that has been conferred, then of course the courts will hold that it has been invalidly exercised.
Through judicial review…
Yup.
There has been a lot of focus lately on Youth Courts3 and whether they are “too secret” because they happen behind closed doors; do you see a value in maintaining the Youth Court system?
The criticism is that it happens behind closed doors?
Yeah.
Well, that’s protection. And that’s in accordance with international standards that youths are to be protected. We know a lot about the development of the human brain, and know that that impulse is actually based on some sound scientific fact that people do grow out of the impetuous behaviour which is behind an awful lot of youth crime. That protective impulse is quite sound.
Over the last ten years, there has been quite a few high-profile criminal cases (Lundy, Bain, Pora, Allan Thomas) where, to the average person, it seems that there have been miscarriages of justice, where evidence has to be reheard or the person who is found guilty is perhaps not guilty. Do you think that connections can be drawn between those cases? What needs to be changed?
Well, there have always been miscarriages of justice. In an earlier age, we didn’t hear about them, because people were executed. You always have to have systems for correcting injustice. There are proposals to set up a criminal-review system, and I think there is sound reason to that, because when you want to reopen a case, often the courts aren’t very well situated to examine all the material. I sat on the Lundy case in the Privy Council, and that was a hugely complex factual matter for an appellate court to come to grips with, so I think that the suggestions that have been made by Sir Thomas Thorp4 and others have a lot of merit to them, and I hope one day they will be picked up.
So there will be a separate way of dealing with criminal appeals?
No, not appeals. If something has gone wrong in the trial, then there must be a system of judicial correction by the appellate process.5 But there are some cases where there is a risk that miscarriages of justice haven’t come to light in the criminal-justice process, and there has to be an ability to reopen those cases, particularly because we have DNA testing and things like that. It is done on an ad hoc basis now, on petition to the Governor-General for the Governor-General’s reference, but it would be better, I think, if we had more of a system.
Yeah, agreed. 70 per cent of law graduates are women, but only probably about 12 per cent of partners6 in law firms are women. Is that a structural problem, and what needs to be changed?
I think it is partly structural, but I think it’s cultural as much as anything. And I think it is a disgrace that women are not represented in the higher echelons of the profession. It’s not just in the senior ranks of the big law firms; it’s also at the bar.7 I think that the idea that a lot of people have had that with increasing numbers that that would be broken down, I’m not sure that it will, because I think it is a cultural thing and I think it is going to require more direct positive action.
So like specific mandates in law firms to take more women in higher positions?
Yes.
Obviously, lately, the issue of privacy has really been the hot topic in New Zealand. Do you think our current…
Not just New Zealand’s legal system, everywhere.
Yep, totally. Do you think our current laws to protect privacy are sufficient?
The law is pretty embryonic in those areas. Although we have had one tort of privacy8 recognised, that’s one Court of Appeal decision really, so I think that this is probably the trickiest problem for the courts at the moment, and it crops up also in the criminal-justice area as well because of the technological capacity for surveillance and investigation, and all jurisdictions are grappling with that too. I think we will see the law evolve.
Māori and Pasifika are overrepresented in crime and prison stats in New Zealand. What do we need to be doing as a country to improve that area?
I think that there should be changes to the criminal-justice process itself, but you can’t expect too much from the criminal-justice system. You’ve already failed as a society when you have people coming through into the system in the numbers that we have, and the overrepresentation of Māori, in particular, is something that we simply have to address. But the causes are not in criminal justice. The causes are social challenges that have to be addressed.
But you think looking into alternatives for criminal justice, incorporating more Māori perspectives, would be a way to help this?
I think the criminal-justice system can perhaps be more accommodating of difference. Although I think there is a limit to that. I am very much in favour of the dispassionate, neutral administration of justice as far as that can be achieved. I mean, I do think the unequal effects of apparently equal laws are a constant challenge, and that challenge shouldn’t be minimised, but I do believe in the dispassionate administration of justice. I think there are limits to accommodations within the criminal-justice system. And I don’t see the criminal-justice system as the cause. I think it could help a lot more. I think it would help a lot more if we put more resources into rehabilitation and probation and all of those areas. We have a fairly punitive streak, which I don’t think necessarily helps in rehabilitation. I do think that we have to look at ourselves as a society about where we are going with criminal justice, because I think we are loading too much into it, than it can really reasonably take. I have spoken publicly on things like the policies that put victims at centre stage in the criminal-justice process, because while it is entirely understandable, I think it has to be recognised that they are transforming what happens in our courts. And I am not sure that that is going to be sustainable, and I am not sure it really helps victims to keep them enthralled to the criminal-justice system. I think it would be much better to address the needs of victims directly.
Sorry, you were asking about Māori. All sorts of efforts are being made. Not so much in the jurisdictions that I am most closely associated with, because in this court and formerly when I was in the High Court, we were dealing with really serious crime in which your opportunities to be responsive to the individual are pretty circumscribed. But in the District Court, in the Youth Court, in the Alcohol and Drug Court, you are seeing initiatives being taken too, which I think are creative and extremely worthwhile. My worry is that because they are generally pilot schemes or they are not available throughout the country, we are getting uneven application of justice, and that bothers me. Because I think equal treatment under law is absolutely critical to the rule of law, so I think we should put our money where our mouth is a bit more. If we think that the drug-and-alcohol courts are working, then we should make them available nationwide. But those do take huge amounts of resources. The problem is that if these problems are not addressed, they also consume huge amounts of resources.
Now, you have been on the Supreme Court for ten years now; what do you want your legacy to be – when, in a million years’ time, you retire from the Court, what do you want people to remember you for?
Well, I think the setting up of the Supreme Court9 is a great thing for NZ’s legal system, because when we had appeals to the Privy Council, very few cases were able to go. They tended to be not terrifically exciting cases, mainly with a lot of money involved, but didn’t generally establish important points of legal principles, and there were huge areas of NZ law of direct concern to the lives of New Zealanders that never got a second-tier appellate look. I think a court doesn’t get established overnight. I think getting it started was a huge achievement, and I think seizing the moment when there was the opportunity, and I think that it’s something that I am very pleased to have been part of. But the setting up of a court takes a long time to become an institution that is really valued in a community, and you can see that with all the great courts in the world. The High Court of Australia took a long time to really hit its straps and so too did the Supreme Court of Canada. But those institutions are highly respected institutions within their jurisdictions, and I look to the NZ Supreme Court for filling a similar role in NZ. But it doesn’t happen overnight. It’s a process.
What key advice would you give to a Law student wanting to make it in the area of the law?
I think you have to be adaptable, because things change very fast, and if anyone of my age looks back on their careers, it is so different now. They have to be adaptable. You have to take the work that comes your way, and any work is intrinsically interesting if you throw yourself into it. I think that it’s a mistake to be mesmerised by top-end work. I think all work well done is worthwhile. And I think that there are huge unmet legal needs. So there is a lot of work to be done out there if you are not too narrow in your focus. So I always encourage people to think a little bit outside the square. To consider going to the provinces for different legal experiences. I think it’s a mistake to specialise too soon, but if you do specialise, I think it’s absolutely critical to keep sense of the scope and reach of the whole law, because no speciality is isolated from it. You can miss currents that will swamp you. So, for example, if you are interested in resource-management law, you have got to understand about general administrative law and the directions it’s taking, because otherwise, you know, just doing it the way you do it here, you will be sandbagged.
Thank you so much for your time.
1. Judicial review is how individuals bring claims against the government or public bodies for misuse of their powers under the law. E.g. if the government had the power to cut people’s hair but they used that power to cut people’s heads off, an individual affected would be able to bring a legal claim in court to stop the government from cutting people’s heads off.
2. Classic legal concept that Parliament is supreme and is the only body that can make laws in New Zealand. The executive (like the Cabinet in NZ) and the judiciary (the judges) can’t make laws.
3. The ACT Party supports the media being able to access and report on judgments of the Youth Court, which they currently can’t.
4. Sir Thomas Thorp is a retired judge of the NZ High Court. In 2005, he published a paper that examined high-profile criminal cases in New Zealand. He found that an independent criminal-review commission should be set up to review cases where there have been allegations of miscarriages of justice.
5. The appellate system refers to the hierarchy of our court system. If a case has been heard in the High Court, it can be appealed to the Court of Appeal and then the Supreme Court. Appeals are generally only on matters of law, and not disputes as to the evidence in a case.
6. Top-dog positions in a corporate law firm.
7. Legal-speak for those lawyers who argue in court rather than just working in a law firm where you rarely actually appear in court. ‘The bar’ has a very literal derivation. In courtrooms, there is a bar beyond which only practising lawyers (who have to sit ‘the bar exam’) can go. Members of the public, or, as lawyers say ‘laymen’, can’t cross the bar. Guts for us.
8. The current vibe of the law is that you can bring a claim against someone who publishes something (of which you have a reasonable expectation of privacy) about you against your consent, “the publication of which would be highly offensive to an objective reasonable person”. Whatever that all means.
9. In NZ, the highest court for appeals used to be the Privy Council, which was in England. That changed in 2004 with the creation of the Supreme Court.