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CJ Sian Elias Address '04 Intl. Bar Assoc. Conf.

ADDRESS GIVEN AT THE IBA CONFERENCE AT A SESSION
ENTITLED ‘THE NEXT GENERATION JUDGE”
Sky City Convention Centre, Auckland
Thursday 28 October 2004
Chief Justice Sian Elias

I am not sure what the organisers had in mind when they asked me to speak to the topic ''the next generation judge''. The programme raises a number of options. I have decided to be selective.

I don’t intend to attempt any crystal ball gazing to try to imagine what the next generation judge will look like. My own experience demonstrates the futility of such a task. I’d give a lot to be able to travel back in time to March 1966 to tell the first year law class at Auckland University that in 2004 the Chief Justice and the Attorney-General would both be women. They just would not have believed it. And neither would their two female classmates who ended up in those positions.

So rather than imagine what might be ahead, I thought I would attempt to sketch out some of the challenges I think face our judiciaries. The challenges are not new. They arise in each generation. But each generation has to find the solutions appropriate to its time and conditions.

The overall challenges can be simply stated. They overlap. They are the challenge of delivering law that is certain but moves with the times. The challenge of ensuring that all in our communities have access to impartial adjudication through independent courts. The challenge of ensuring that the exercise of power, whether public power or private power, is lawful. And the challenge of maintaining public confidence in the administration of justice in our courts.

The maintenance of public confidence is the most important challenge. Judges lack popular mandate. Nor can they hope to be popular through much of the work they do. If their independence is not valued as a public good worth defending, it can easily be eroded, particularly when judges are asked to make decisions which are unpopular or which thwart powerful groups. Then, unpopular decisions can too easily be characterised as the result of activist judges insufficiently deferential to democratic principle who are pushing barrows of their own. If the independence of the judiciary is eroded, impartial adjudication is lost.

None of these are simple concepts. Nor is the idea of judicial independence immediately appealing to those who think that it is a matter of status for the judges themselves. In many jurisdictions the place played by an independent judiciary in the constitution is not understood. (In Australia, for example, a recent opinion poll found that a majority of those polled thought judges should be elected.) I don’t intend to be alarmist. As I have indicated, there is nothing new in these challenges. Each generation of judge, every wave of the legal profession, has had to confront them. But the way in which the challenges are met depend on the solutions and attitudes of the times. There is no room for complacency or rigidity.

In the time available to me, I thought I would touch on four matters: the easy charge of “activism”; institutional independence; retirement benefits for judges; and judges speaking out.

Activism
Judicial activism is an easy but damaging label. Some people seem to use the term to describe the author of any judgement they do not like. That is simply abusive. Others apply it to those they consider crusaders for particular causes. When used in this way, it is effectively a charge of bias and an attack on the observance of the judicial oath. More moderately, the term may be used to describe a Judge who is thought to be too ready to overturn precedent or fill a need in the law that would be better left to Parliament. That is a claim of judicial imperialism, insufficiently deferential to democratic process. In substance, it is a criticism of another form of crusade, equally inconsistent with the judicial oath.

I do not know any Judge who would say that precedent should be thrown over lightly or that all gaps in law should be filled by Judge-made law. What course of action a Judge is driven to in deciding a case properly brought before the court depends on the circumstances. Certainty and stability are always important considerations. Judges are acutely conscious that they lack the tools as well as the legitimacy to legislate.

What are the responses? They lie in judicial method and diversity.

First, method. It is essential for judges to pay scrupulous attention in judging to reasons. In particular, reasons should identify and express any undisclosed premise important to the conclusion. Suspicions that judicial axes are being ground is a suspicion of bias, conscious or unconscious. The best answer, as Justice Keith Mason, President of the New South Wales Court of Appeal has suggested, is for judges to “come clean and get real”. This is hard work. And sometime such expression itself may provoke controversy, as in the Canadian case of R v RDS where the trial judge candidly acknowledged in her reasons that she had taken into account the existence of “widespread and systematic discrimination against black and aboriginal people. But I think honesty in this is the best policy.

Secondly, I think we need to emphasise the discipline of legal methodology and appellate check. No judgement is isolated from the existing legal order. Legal methodology is inherently conservative. No judge can push a barrow without risking appellate review. And even final courts of appeal are subject to critical academic and professional assessment and, except in constitutional cases, legislative correction.

Thirdly, greater diversity in our benches is to be welcomed. It flushes out unconscious attitudes of the type that within my time in the profession caused judges to construe matrimonial property legislation strictly and in an earlier time described by Lord Devlin caused a generation of judges to look behind legislation to a Victorian Bill of Rights which exalted private property. Chief Justice Barak of Israel has said that the goal of objectivity in judging “is not to liberate the judge from his past,his education, his experience, his faith and his values”

On the contrary, its purpose is to stimulate him to make use of all of these in order to reflect as purely as possible the fundamental values of the nation.

Institutional independence
The question of institutional independence is current in a number of jurisdictions, including New Zealand.

The New Zealand Constitution Act 1986 makes separate provision for the legislative, executive and judicial branches of government. Although our legal system requires the independence of the judiciary from other sources of State power, in reality, that independence is fragile. Judges have security of tenure and salary but are dependent upon the Ministry for administrative support.

International statements of basic principles for judicial independence adopted both by the United Nations General Assembly and by the Commonwealth recognise that judicial independence has an institutional dimension. The Supreme Court of Canada has held that administrative independence in the organisation of judicial work and the support necessary to achieve it are aspects of judicial independence. Chief Justice Barak of Israel has expressed the view that it is inconsistent with judicial independence for the administration of the judiciary to be through a department of government. In the United States, Canada, and Australian jurisdictions considerable operational autonomy is given to judges.

In the United Kingdom all Law Lords, in response to the government’s consultation paper proposing the setting up of the Supreme Court in the United Kingdom, were in agreement that a new Supreme Court “should enjoy corporate independence.” The submission makes it clear that the court:

……must have its own budget, settled in a manner which protects the court from political pressure. It must have its own Registrar, answerable to the court, its own staff and its own IT facilities. The independence of the Judges requires not only that they be free of extraneous pressure but also that the court be institutionally free of administrative pressure. In Australia, a one-line budget is agreed annually between the High Court’s Chief Executive Officer and the Attorney-General and a similar arrangement would be appropriate here.

It is arguable that in New Zealand we are now getting out of step with countries with which we identify closely. Since 1995 we have attempted a middle way, with the courts administered by a separate Department for Courts. In matters of direct judicial support (including support for organisation of judicial work) we have operated in a loose partnership with the Department. In 1997 my predecessor as Chief Justice, Sir Thomas Eichelbaum, pointed out the dangers for judicial independence in our arrangements. He expressed the view that this half-way house would prove to be an intermediate step to judicial control of the administration of the courts.

I have been more reluctant about judicial control of the administration of the courts as a whole. I see the provision of courts as a substantial undertaking of executive government, but I have come to the view that our immediate judicial support does need to be under judicial control because it is inextricably bound up with judicial independence. It is not appropriate for our staff and systems to be part of the Executive.

The problem of principle has been exacerbated in recent times by three circumstances. First, the resumption of responsibility for courts and judicial support by the Ministry of Justice, a large policy department with an interest in matters litigated in the courts. Secondly, by Employment Court indication that the “Crown Prerogative employee” status which we had thought was enjoyed by our staff – making them responsible to the Judges – was not effective to prevent them being employees of the Ministry. Finally, by our dependence in internal communication and judgment writing on technology which is part of the Ministry system and in which our security needs have not been adequately addressed. There is no pressing incentive on the executive to address concerns like these.

Retirement benefits
In most jurisdictions it is expected that judges once appointed will not return to private law practice. The reasons for that are to maintain the independence of the judiciary. If judges aspire to return to practice, there is the risk that they will be influenced in their judicial work by the need to maintain good relations with the profession or other sources of income. Judges should be free of fear of want and hope of favour. This view is under some strain. In the United Kingdom there are proposals to permit return to practice in an attempt to encourage diversity in appointment: appointees who fear they will not like judicial life will then, it is apparently hoped, not feel inhibited in accepting appointment. It is not clear whether this suggestion will be implemented. In a number of jurisdictions return to arbitration practice is thought not to violate the spirit of the tradition. I am not sure that is properly to be distinguished from legal practice. And that is perhaps a point we will have to confront.

In New Zealand the strains upon the convention are exacerbated by an early retirement age and by the removal of a defined benefit on retirement. Since 1992 we have had instead a defined contribution superannuation scheme for all judges appointed after 1992. A similar system has recently been implemented in Tasmania. Other Australian jurisdictions are considering comparable changes to their pension systems for judges. Such a system transfers the risk of investment to the judge.

Our experience is that there are significant risks in the new arrangements.
1. First, the changes are based on a questionable assumption: that for the purposes of retirement benefits the judiciary can be treated in the same way as other state and private sector employees. Gaining acceptance that the judiciary occupies a special place prompting a different system is a real challenge.

It is key because a major purpose of superannuation reform has been to transfer risk from the Treasury and from private employers to the person benefiting. The risk assumed in relation to judges is not what is of most concern. The Minister of Finance has declined to reconsider the position of judges on the basis that if the government acceded to the request it would be faced by similar pressure from other groups, such as the police. It is critical to establish why the position of the judges is different from all other groups and why the community interest in an independent judiciary requires a distinct response.

It needs to be acknowledged that the distinct place of the judiciary is not a popular notion. Many tend to become indignant at the idea. There is no widespread understanding that there is public interest in the separate treatment of judges. Indeed such notions tend to be resented as elitist.

2. Secondly, the advantages of a contributory system (portability; empowerment of those benefited to invest the contributions themselves; the ability to restructure the total employment package between superannuation contribution and income for tax and lifestyle reasons) may be irrelevant, undesirable or unachievable for judges. This is not a distinct argument, but rather a subset of the reasons why judges are in a different position from others.

3. Thirdly, change is extremely difficult to manage fairly within the judiciary.
Our experience is that different remuneration packages now apply to the different classes of judge – those appointed before 1992 and those afterwards.

The managed funds and some of the private schemes in which judges have invested have done very badly. There will of course be reversals of fortune over time. In the meantime, we are now getting judges nearing retirement who are very anxious indeed about their positions. Some are considering early retirement in order to re-establish themselves in practice. Retention of judges is emerging as a growing concern. Post retirement earnings are now a significant preoccupation. A judge who has retired and who does not want to go into practice, because he thinks it is incompatible with his acceptance of judicial appointment, may have no choice. Judges nearing retirement at the current statutory age of 68 are anxious to establish what work they can expect to get under Acting warrants or through government appointments. I am spending a great deal of time canvassing options for them.

I am alarmed about the implications for judicial independence if judges have any incentive to stay on the right side of the government or keep in with influential members of the profession who may be expected to provide them with work after retirement. I am alarmed at the risk for the appearance of judicial impartiality if judges take an active interest in the management of their superannuation assets. And the amount of time such management takes. And yet it is difficult to see why judges should be denied the right to look after their own interests.

It is inconsistent with the appearance of judicial impartiality for judges to be seeking to restructure their pension and salary packages for tax advantage. And yet that is to deny judges benefits available to others who are on similar superannuation systems.

The absence of the security of the pension has also impacted upon recruitment: Some senior members of the profession who have turned down appointment have referred to the lack of security.

Speaking out publicly
The New Zealand judiciary today faces a number of challenges. Its standing has been unsettled by two or three years of restructuring and reassessment. The pace of change does not show signs of slowing and the further changes still to be implemented or which are foreshadowed, will keep the judiciary and its performance in the public eye.

It does not help then that we have a climate of some suspicion about the role of the judiciary. Some of that has come about because of on-going tensions about law and order. In addition, questions about the legitimacy and scope of the judicial function, long raised by business groups and some academics in relation to the claimed “activism” of the New Zealand Court of Appeal, have spread more widely. They have been fuelled in part by political controversy over the creation of the Supreme Court and in part by political fall-out from recent court decisions.

The respect due to the other institutions of government, the executive and the legislature, as well as the need to maintain the impartiality of the judiciary in judging, imposes very real constraints on what is appropriately the subject of judicial comment and the manner of that comment. In New Zealand we have been more reluctant than judges in some other jurisdictions to get embroiled in public controversy. Of course, speaking about the role of the judiciary in the legal system and the current issues it faces is a judicial responsibility, usually undertaken by the Chief Justice or head of a particular bench. Usually the topic is thought to be rather dull. Indeed, that is one of the reasons Chief Justices and other judges talk about it – it is safer than talking about legal problems that may arise for determination in the courts. But when significant restructuring of judicial institutions is current, it is difficult to avoid comment on matters within the political orbit. Then the perspective of the judiciary may be controversial. I do not think that means that the perspective should not be expressed on matters which directly affect the administration of justice.

How far beyond such matters judicial comment is appropriate is more difficult. In New Zealand we have had no recent examples comparable to the statements made for example in the United Kingdom about sentencing and immigration policy. It is rather odd, therefore, to find the judiciary under attack for insufficient deference to the legislature. I think the work of New Zealand judges has been characterised by scrupulousness in attention to statutes and a consciousness of the limits to judicial legitimacy. We have had a much less suspicious, more appreciative understanding of the role of both legislature and executive in securing good government.

Sir Thomas Eichlebaum before I became Chief Justice expressed dismay about public understanding of legal issues. He suggested that in New Zealand there was “a paucity of intelligent written analysis of legal topics in terms understandable to a broader audience” such as was available in newspapers in Australia.

It became clear that in order to achieve balance it was the judges themselves who would need to take steps to present their point of view. Initiatives taken to provide better information to the public at that time included the provision of an annual report which was hoped to provide an opportunity for Heads of Court to speak out on controversial matters. A judicial communications advisor was appointed to act as a channel for information between the media and the judiciary. Courts were opened to television, an attempt to make them more accessible to the public in a way in which we still are ahead of your jurisdictions.

Views today are mixed on the success of the strategy. Some believe that the advent of television and radio broadcasting of court hearings has accentuated the negative – the sad and violent lives of some in our community – fuelling outrage, without assisting in public understanding of the work of the courts. What perhaps the greater accessibility of the electronic media has done, is emphasise that the Courts are the courts of our communities. That is a good thing. Justice should not be seen to be remote and the preserve of lawyers and Judges alone.

We have tried in the Court of Appeal and High Court, to make judgements more accessible by providing tables of contents and in cases where there is likely to be substantial public interest, by providing summaries of the decisions. We had hoped that, even if the public as a whole would still find reasons for judgement indigestible, the press would be assisted in its task of reporting them. We have posted sentencing decisions and decisions thought to be of public interest on the Ministry of Justice website so that those interested can have access to them immediately the decisions are available. No doubt these initiatives have assisted to some extent, but there is a limit to what can be done if the media and those who comment on decisions do not play their part - and judgements are after all never going to be material many people read for recreation.

We do not fare better in communicating views and information about judicial function and its place in the legal system. The judicial communications advisor responds to media inquiries, which is a great help to us, but does not have the means to pursue a more ambitious strategy of public information, although we are currently reviewing what can be done there. The annual report was expensive to produce. It was difficult to co-ordinate all the different Benches to achieve timely publication. In its hard copy format it was not effective as a means of communicating the views of the Heads of the different jurisdictions on matters of controversy, as had been hoped. The statistical information about work-flows in the courts were published in any event in the Department’s annual report.

We decided that we should replace the judicial annual report with a judicial website on which we could place annual reviews as well as the work-flow information, which could be kept up to date rather than being an end-of-year snapshot. In addition to the material published in the annual report, we thought that the judicial website could be the site for publication of decisions of public interest and the papers produced for public speaking engagements by the Judges. These papers are often significant contributions to legal issues and deserve a wider audience than those who are present to hear them, or the subscribers to the law reviews in which some of the more substantial papers are published. In the past, many of these speeches were published in the New Zealand Law Journal as a record. That is no longer the case.

There has been agreement by the Ministry that a judicial website should be established for some years. To date, other priorities in government have delayed the project. Lacking a budget of our own, we have not been able to achieve what seems a modest and sensible strategy to make the work of the courts more accessible and comprehensible, although I have been assured that the Ministry will now make the resources available.

But, overall, on public communications we need to do more and we need to do it very much better.

ENDS

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