Heads of Bench Dinner

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 evening (Sign)

I then specifically greet you: Rt Hon Dame Sian Elias, Chief Justice; Your Honours Justice Mark O’Regan, President of the Court of Appeal; Justice Helen Winkelmann, Chief High Court Judge; Your Honours Judge Russell Johnson, Chief District Court Judge; Judge Graeme Colgan, Chief Employment Court Judge; Judge Peter Boshier, Principal Family Court Judge; Judge Andrew Becroft, Principal Youth Court Judge; Hon Simon Power, Minister of Justice and last, but by no means least, Hon Christopher Finlayson, Attorney-General.  

Thank you for accepting the invitation from my wife Susan and me to this dinner here at Government House Vogel for the Heads of Bench.

Since coming to this role almost four years ago, we have hosted a series of dinners and receptions that have emphasised the links between Government House and, in the widest sense, the various arms of our democracy and government.

They have included occasions for the Heads of New Zealand’s military forces, Government Heads, Judges of various Courts and Crown Solicitors.  There have also been dinners, luncheons and receptions to connect with the Diplomatic Corps, organisations which hold vice-regal patronage, local government, senior members of the Press Gallery and media outside the Capital.

It seemed entirely appropriate to host a dinner for the Heads of Benches of New Zealand’s courts and I discussed that prospect with the Attorney-General some time ago.  It also seemed appropriate to invite the two Ministers of the Crown—the Minister of Justice and the Attorney-General—who provide key advice to me on the discharge of many of my duties which have somee close proximity to each of you.

As an erstwhile lawyer and judge, in the company of judges and lawyers, I have had occasion to ponder the two career pathways, although possibly not in terms described by comic Gary McCormick 33 years ago when he wrote in The New Zealand Listener of 27 August 1977 as follows:-

“If only I was a lawyer,
and had lawyers at my side,
in truth we’d be immortal —
old lawyers never die.
They become judges.”

Speaking of the shift from being lawyers to becoming judges, it is pleasing to see today the range of work achieved by the Institute of Judicial Studies, including that achieved by orientation programmes in which I had some developmental roles.  I observe that you Justice Winkelmann and Chief Judge Johnson serve on the governance board.

As many here know only too well, life as a judge is quite different from life as a lawyer.  Serving as a judge, it was always a pleasure to be able to concentrate one’s mind on one case at a time.  As a lawyer, you were invariably juggling appointments at court with meetings with clients at the office and, once becoming a partner in a firm, various administrative meetings as well.   Obviously, as Heads of Bench, you have significant responsibilities that go beyond the immediate concerns of a particular list of cases and matters to be heard in any one day or week.

In the judicial life, you also have the opportunity to place your own mark on the administration of justice in your courtroom.   And unlike many other pursuits your colleagues are just that, colleagues, not competitors as they might be as a lawyer.  The support and advice of one’s colleagues remains an unexpected, yet cherished part of time as judge.

More widely the life of a judge is one of service to the community and to the values and principles of the law.   Those principles, and particularly the rule of law and the protection of the rights and liberties of citizens, have a long ancestry that predates New Zealand’s establishment as a modern nation in 1840.

The judicial oath—“[to] do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will” —encapsulates the fundamental principle of justice through the law.  The primacy of the rule of law was well made by Lord Steyn in the 2002 Robin Cooke Lecture when he said: “At the root of it is the struggle by fallible judges with imperfect insights for government under law and not under men and women.”

That sense of service was brought home eloquently to me in a letter I received recently from a District Court Judge on surrendering her warrant.  The letter from her read in part: "I have been privileged to hold the office and in exercising it to serve my country.  My years as a judge have been a time of great personal reward and satisfaction."

There has always been a tension between the judicial oath and the oath Mr Power and Mr Finlayson made when I had the task of appointing them as Executive Councillors in November 2008.    Their oath is to the best of their judgment, to give the Governor-General counsel and advice for the good management of the affairs of New Zealand and to maintain the secrecy of all matters discussed in Executive Council.

That tension, however, which is at the heart of what is involved, is well put by Professor Philip Joseph of Canterbury University. He describes as the “collaborative enterprise” of the business of government and the relationship between its political and judicial arms in the following words:

“Political and judicial powers are essential correlatives of representative democracy and the rule of law… The expression ‘collaborative enterprise’ usually depicts the political-judicial relationship. It identifies distinct interests, joined in the business of government, sharing a relationship of interdependence and reciprocity. Each branch is interdependent on the other, exercising reciprocal responsibilities. Judicial recognition of Parliament’s legislative power, and exclusive cognisance, augments the political branch, and political recognition of the courts’ judicial powers and institutional independence augments the judicial branch.”

The term ‘collaborative enterprise’ seems a good way to promote the discussion that will flow this evening, 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. 

I trust you enjoy the hospitality of this house this evening.