Speech
Address to law students
I begin by greeting everyone in the languages of the realm of New Zealand, in English, Māori, Cook Island Māori, Niuean, Tokelauan and New Zealand Sign Language. Greetings, Kia Ora, Kia Orana, Fakalofa Lahi Atu, Taloha Ni and as it is the afternoon (Sign) Thank you for inviting me to give this lunchtime lecture to law students here at the University of Auckland.
I would like to take an opportunity to offer some insights from a career in the law that began at this University in the mid 1960s - more than 40 years ago. There are a number of reasons for this. First, to show how a career in the law can be highly varied and textured and lead to less than traditional career outcomes. Secondly, to show how an understanding of the law can inform that work. Thirdly, for those of a constitutional bent, I will offer some perspectives of the workings of the life of a Governor-General. Finally, and I believe most importantly, in a challenge to this audience, I will emphasise that a career in the law brings benefits and privileges, as well as significant responsibilities.
To start at the beginning, it is now 40 years since I graduated from this University with a Bachelor of Laws degree and when I was admitted to the Bar. 1970 was also the year that I married my wife, Susan, and I would not have been able to accomplish all that I am about to speak of if it was not for her unwavering support. Indeed, it was through the law-Susan was working in the Lands and Deeds Division of the Land Transfer Office and then in a law office-when we met, so the law has remained weaved into almost every aspect of my life.
The law was not however my initial career choice. As one with a medical father - a general practitioner and whose mother was a nurse, my own plan "a" was for a career in medicine. So in 1964, I headed to Dunedin and enrolled as a student at the University of Otago and began Medical Intermediate.
Not very long after the commencement of the academic year, I realised that medicine was not my calling. I returned to Auckland, subdued but resolved, relinquishing my bursary and staying at home. I began studying at this University's Law School, with a full time year in 1965 and then working as a law clerk during the day and attending lectures in the morning or early evening.
That part time way was then the long-established path to earning one's stripes and, as a mode, it was already then being phased out and it has since entirely fallen from favour. While many, who study law these days, have no intention of working in law, I cannot help but suspect that something has been lost for those who do seek a career in the law. I continue to believe there is immense value in seeing the law being practised at the coal face whilst studying its principles, and I have never resented what I picked up at the margins whilst stamping and registering documents, filing wills or probates in court, and doing rudimentary estate administration, debt collection and conveyancing work.
The University of Auckland, let alone the Law School, was also a much smaller institution in those days, based solely on the central city campus, with the Law School in a converted house called Pembridge with a "prefab" library out behind. There were about fewer than 10 000 students in 1970-whilst today there are almost 40,000 spread across a number of sites.
My working life began in a way that will be the career path for some here. After a couple of years in a conveyancing firm, I started work in the Crown Solicitor's Office-Meredith Connell-initially assisting and then later prosecuting a variety of cases. Later I joined the Auckland law firm, Shieff Angland, as a partner where I practised primarily in criminal law, revenue law and judicial review cases.
Even so, I saw service to the law as something more than appearing in court and clocking up billable hours and in this I was encouraged by some wonderful partners and colleagues. During this time I also served as as an elected member of the Auckland District Law Society Council and an appointed member of the Government Criminal Law Reform Committee and the District Court Rules Committee. I maintained an interest in continuing education and took part in the first steps in litigation skills enhancement programmes offered by the Law Society. I also had an opportunity to combine legal interests with a long-time love of sport, serving as Secretary of the Rules and Interpretations Board of the New Zealand Rugby League.
In 1982, an opportunity came to be appointed as a District Court Judge with a jury trial warrant, serving initially in Palmerston North and then later in a number of courts in metropolitan Auckland-Henderson, Otahuhu and Auckland. Service to the judiciary was not solely restricted to presiding on criminal and civil cases. I also served following the passage of the 1985 Criminal Justice Act as Chairman of a Prison Board and later as a member of the National Parole Board. I pursued my interest in legal education by having a significant involvement in judicial orientation and professional development programmes for judges such as are now delivered by the Institute of Judicial Studies.
Working as a lawyer and then a judge, as an officer of the court, I was bound by oath to uphold its rules. In both roles, I saw at first hand one of the most important and oldest democratic practices at work, namely the right to trial by jury when one is accused of a serious crime. The ancient right to "lawful judgement by peers" is one New Zealanders continue to enjoy because of clause 29 of Magna Carta which remains a part of our laws by virtue of the Imperial Laws Application Act 1988.
Thirteen years later, 1995, my career took a quite different and less conventional turn, when I was appointed by Parliament as an Ombudsman, eventually serving two five year terms. During his time, my interest in continuing education was maintained by involvement in the delivery of a Commonwealth Secretariat-funded programme in London for newly appointed Ombudsmen and Ombudsman investigators.
The Ombudsmen play a vital role in connecting the public and the executive and the wider public sector. While knowledge of the law is not prerequisite to being an ombudsman, most of New Zealand's ombudsmen have been lawyers or held law degrees. For one with a legal bent, however, it sheds a different light on key values such as justice and fairness.
The Ombudsman's work was originally seen in humble terms as a simple, low-cost way that citizens could have grievances against public bodies investigated by an impartial authority.
However, the role is increasingly seen as a tool to ensure human and political and civil rights. In this respect, Ombudsmen respond to complaints on the actions of authorities such as Police, Customs, Corrections or Immigration officials. In any democracy it is important for everyone to feel they have a channel through which they can pursue issues or voice concerns and the Ombudsmen have provided one such avenue.
And those rights apply to everyone. For example, in my time as an Ombudsman, I often dealt with complaints from prisoners about the Department of Corrections. Recognising the right of everyone to an independent complaints process, letters from prisoners to the Ombudsmen are among the few items of correspondence that are not opened by prison staff prior to being sent.
With the completion of two terms as an Ombudsman, in 2005 I had an opportunity to view New Zealand's constitution from a new perspective upon being appointed as Parliament's first Registrar of Pecuniary Interests. As Registrar, I compiled the register, devised the system using precedents from legislatures in Australia and the UK. I then provided advice and guidance to MPs on their [new] obligation to make annual returns of pecuniary interests. The position, which continues to evolve under the stewardship of Dame Margaret Bazley, is designed to enhance transparency so the public can have greater confidence that their legislature is free of corruption.
In August 2006, I was appointed as New Zealand's 19th Governor-General. Again, a legal background is not a prerequisite, although of the nine New Zealanders who have held the role, five, myself included, have been lawyers or judges.
As the Governor-General today, I am in a different place, at the head of the system of government where I discharge three sorts of functions-constitutional, ceremonial and community leadership. Each has their fascinations for someone recreationally as well as professionally interested in the law.
But there is also an immediate difference personally. Whereas in much of my life in the law proper, the duty and responsibility was mine alone, in the governor-general role there is a vital contribution made by my wife Susan, especially in the ceremonial and community aspects-usually together and sometimes independently.
Under the "constitutional" heading, on the advice of Ministers, I consider and sign into effect laws and regulations and the warrants for appointment of diplomats, senior civil servants, judges and commissioned officers of the New Zealand Defence Force. From the first pieces of legislation I assented to-the Coroners Act 2006 on the 29 August and the Kiwisaver Act 2006 on 6 September 2006-I have since lost count of the pieces of legislation or regulations I have assented to or signed.
There has been the singular experience of signing into law the largest piece of legislation ever passed by our Parliament, which you will probably not be surprised to hear was the Income Tax Act 2007. At 2,855 pages long it covers four volumes. The Minister of Revenue, Hon Peter Dunne, assured me that, despite its doorstop size, it was better worded and repealed an even larger amount of incomprehensible law. I have yet to check the New Zealand Law Reports to see whether his faith in its greater clarity has been justified!
But that is to jest. The role of the Governor-General is one that is the cause of much musing in law schools and of occasional consternation among those in the public, angry at a particular Government's decision or a law that Parliament has passed. My office regularly receives letters or emails calling upon me to call things to a halt, to dismiss a particular Minister and often enough, the entire Government. Recently, there have also been complaints about actions of rental car companies and parking control in a provincial city.
Much of the interest in the role centres on the so-called "reserve powers," which have been defined as the Governor-General exercising independent judgment to appoint or dismiss a Prime Minister, refusing a request for a dissolution or forcing a dissolution, or refusing the royal assent to a bill.
Professor Philip Joseph, of the University of Canterbury Law School, has called the term "reserve powers" a "misnomer". As he notes in Constitutional and Administrative Law in New Zealand, which I imagine will be familiar to many here as follows:
"While these powers are exercised only in extremity, they are all aspects of the Governor-General's ordinary legal powers .... [These] situations are distinguished, not by an additional or exceptional power, but by the rejection or lack of ministerial advice. The question is whether, owing to exceptional circumstances, the usual convention enjoining ministerial advice does or does not apply. Constitutional convention cannot at law extinguish or attenuate legal powers, nor can constitutional convention amplify or create legal powers."
Thankfully, apart from the appointment of a Prime Minister, which inherently involves the use of this power, no New Zealand Governor-General has had to intervene in the day-to-day politics of the moment. While there have been occasional political crises, none have developed so far as to result in a constitutional crisis that might necessitate the Governor-General's involvement.
And that is as it should be. New Zealand is a democracy. New Zealanders elect their representatives to make laws for the good governance of the nation and, I might add, to sort out the occasional crises that are the stuff of a life in politics. It is neither the role nor the right of an appointed Governor-General to usurp the decisions of a democratically elected Government or the occasional ups and downs that might occur along the way.
A few months' short of our fourth anniversary in the role, we have experienced every aspect of the job from opening new school buildings and offices through to opening Parliament and delivering the Speech from the Throne.
Governors-General have had the burden of constitutional duties, and to receive what is offered by Ministers who are charged under the Letters Patent to keep the Sovereign's representative fully informed and to provide any information requested. This is the textbook right to be consulted, to encourage and to warn.
In practice this is played out, generally, by receipt in advance of copies of all instruments I am expected to sign on the advice of the Executive Council. As one would expect of someone with a legal background, I consider what is on offer and the statutory authority under which it might be made. The Minister responsible for the recommendation on which the Council will base its advice will be present at the meeting and may be asked to provide further information or clarification if that is sought. In other words, an active role is called for - as is judgment called for-in the incumbent not ever being considered a pushover who might sign anything put in front of them but also not being considered a nitpicking pedant whose attention ought be elsewhere.
But while constitutional aspect of the job gains the most interest from lawyers and political scientists, the reality is that the three roles-constitutional, ceremonial and community-are interrelated and together create more than the sum of their individual parts.
Most of our time is absorbed by the "ceremonial" and "community leadership" aspects of the role. That is broad and best described by saying that from differing perspectives among 150 patronages, I have accepted the role of being Patron of PARS, the New Zealand Prisoner's Aid and Rehabilitation Society, and as well being patron of a Recruit Wing from the Royal New Zealand Police College.
The expatriate Australian academic, Dr Germaine Greer, in 2008 suggested that the Governor-General's role was so monotonous and protocol-bound that it could be done by a robot. This suggestion is in my respectful view, laughable. I much prefer the view on this of my predecessor, Sir Michael Hardie Boys, who concluded his 2002 Neil Williamson Lecture by saying:
"I trust ... I have shown that the Governor-General is no nodding automaton, no mere nibbler of cucumber sandwiches, as one young person told me she had thought; but that the office has an important and developing role to play in our national life - not just the constitutional role as representative of our Head of State, but as representing the nation in a ceremonial way, and as representing the people to the people."
In my previous careers, I was more often than not involved in focusing on or resolving inherently negative matters and being focussed on the error, mistake or transgression.
As a lawyer it was prosecuting or defending someone accused of a criminal offence. As a judge, presiding over trials and sentencing those convicted. As an ombudsman, it was attempting to resolve grievances between members of the public and governmental agencies, whether to do with actions or the provision of official information.
As Governor-General, another facet of the jewel of our community is exposed, when there is demonstrated, again and again, the opportunity to see New Zealanders at their best. It is a hugely exhilarating as well as challenging role. Involvement with events and with people who influence events are themselves sources of huge job satisfaction.
In summary then, while all parts of my career have had a legal aspect, legal training has not been a prerequisite for all of them. But whether as a lawyer, judge, ombudsman or Governor-General, what this varied career has provided me with is a greater appreciation of the importance of the law as a vital and liberating force. This sort of point was well made by one of New Zealand's most esteemed jurists, Rt Hon Sir Kenneth Keith, the first New Zealander to sit on the International Court of Justice. While his comments were from the perspective of a judge, I believe they can be applied more widely. He said:
"I see the law as a wise restraint that makes us free. Obviously it controls people-you only have to look out on the street to see that in terms of traffic laws-but it also makes you free so you can make your own decisions. As a judge you're keenly aware that the law is not just about order, but also freedom and justice."
A career in the law bestows many privileges and benefits for those who choose that path. But those privileges also come with significant obligations to the wider community. In addition to your own personal efforts, your family and the wider community are investing heavily in your education, regardless of whether it takes you to a life as a lawyer or not.
I believe those with a legal background have much to offer in assisting community groups and by doing things such as serving on local authorities, school boards and/or on the governance mechanisms of many organisations that work in the interests of our community.
Two examples come to mind. I noticed, for example, news last year that senior members of the Bar had volunteered their time to the Auckland SPCA to assist in prosecuting animal cruelty cases. A second, and equally worthy example, is offered by this University's Law School. The Equal Justice Project, a student-run organisation, promotes access to justice in Auckland by promoting voluntary legal work by law students in partnership with community groups and the profession. Pro bono work by lawyers helps to address the gap between public resources and unmet legal needs. This is a highly commendable initiative and it is one that I urge practitioners to support.
For those who choose to work as practising lawyers, as I have said, the law will still give you much. Following admission to the Bar, as officers of the court, you will have a responsibility to ensure that everyone, regardless of their background, receives fair, sound and independent legal advice and representation and that they will thus be fully cognisant of their rights as citizens.
To illustrate this point, I have an apocryphal tale from the life of the one-time American President Abraham Lincoln, from his earlier life as a lawyer. It speaks of the rights and responsibilities of a legal life.
The story goes that Lincoln was in court when a young lawyer faced disbarment. The novice lawyer had shared confidential information with a client that he had learnt as an apprentice when he later established his own practice. As he was young, the Judge in the case was inclined to accept the novice's request that he not be disbarred, so he could start again in another state. Seeing Lincoln in the crowded courtroom, the Judge asked him to convey to the young man the censure of the Bar. Lincoln is quoted as saying to the young lawyer the following:
"Justice is not a fiction; and though it often held to be sentiment only, or a remote ideal, it is real, and it is founded and guarded on all sides by the strongest powers of Divine and human law. The court will not pronounce your disbarment; you have done that yourself. The people will trust no one, without sincere reformation, who has been wrong and reckless, as you admit, in one of the most confiding relations that ever exists between men.
"A client appears in court by his lawyer so often and the custom so generally prevails that if he is not represented by honourable and trustworthy counsel, the right is of little value and he is virtually denied the justice to which our law entitles him. A lawyer who becomes by his admission to the Bar of any of our courts part of the judicial establishment of the land should have integrity beyond question or reproach. Courts of law as of equity can sustain no other without themselves becoming venal and corrupt. A tarnished lawyer is a homeless man. Therefore seek until you find a real reformation in honest work, and the court will approve."
It is recorded that when Lincoln finished speaking, all that could be heard in the court was the soft sobbing of the young lawyer. The lesson here-of the importance of honesty and integrity-is one that should guide any professional, lawyer or otherwise.
As Governor-General and as a sometime, and some might say, recidivist member of the legal profession, I wish you all the best with your studies-whether it is to a career in the law or elsewhere.
And on that note I will close in New Zealand's first language Māori, by offering everyone greetings and wishing you all good health and fortitude in your endeavours. No reira, tēnā koutou, tēnā koutou, kia ora, kia kaha, tēnā koutou katoa.