Justice in the Round

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 morning (Sign)

I then specifically greet you: Professor Bradford Morse, Dean of Te Piringa Faculty of Law at the University of Waikato; Hon Margaret Wilson, Professor of Law and Public Policy, former Dean and former Speaker of the House of Representatives; Hon Sir Edward Taihakurei Durie, former Justice of the High Court of New Zealand and Chairman of the Waitangi Tribunal; Dame Hazel Genn, Dean of Laws, University College London; Distinguished Guests otherwise; Ladies and Gentlemen.

Thank you for inviting Susan and I to be at the opening of this international conference, Justice in Round: Perspectives from Custom and Culture, Rights, and Dispute Resolution.

As Governor-General, I would first like to take this opportunity to welcome the people from overseas from near and far attending this conference.  I trust you will have the opportunity to explore a little of New Zealand before you depart.

I would also like to underscore how good it is to return to the University of Waikato and particularly its Faculty of Law. It was a particular pleasure to give a public lecture on the Governor-General’s role in New Zealand’s electoral architecture last month.  I congratulate the Faculty, with the support of the Law Foundation, for organising this conference, which has brought together an esteemed gathering of speakers to address many topical issues.

I have been given the honour of officially opening this conference, but before doing so I would like to speak to aspects of the theme of this conference.

“Justice” is a word that resonates with those, like myself, whose lives have been intertwined with the law.  While we use it almost everyday, when pushed to define it, we often come up with different answers.  It reminds me of the often quoted piece of Lord Justice Lawton’s judgment in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 which goes:

“From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise.”

In attempting to bring together those two qualities—easy to spot but difficult to define—turning to a dictionary leaves one wondering whether the English language is full of elephantine words.  The Oxford Concise Dictionary, for example, in defining “justice” gives four broad definitions that invariably use equally broadly defined phrases such as “just conduct,” “fairness,” “treating fairly,” “doing justice,” “bringing to justice,” “reward for a virtue” and “punishment for a vice.”  It also itemises the people, organisations and proceedings involved in the system from the Courts, to Judges, and government agencies involved in administering the justice system.

Examining the programme for this conference reveals many more differing perspectives on justice.  They include the rights of indigenous peoples and other minorities, including those with disabilities.  They also include issues related to health, education and work of the criminal and civil justice systems, as well as alternative means of resolving disputes.

Despite a more than 40 year career as an erstwhile (and some might say recidivist) member of the legal community, I am unable to help this audience with any all encompassing definition.  What I can offer, however, are some insights that I have gained from the different perspectives in which I have seen justice in action.  A theme which connects them is that justice should never be seen as a static or fixed concept, but rather is one that is continually evolving.

Starting as a law student and working part-time as a law clerk in the mid-1960s were followed by 12 years as a practising lawyer after I graduated from the University of Auckland in 1970.  The first half of the six years was spent in the Crown Solicitor’s Office in Auckland and the latter half as a defence counsel when I became a partner in the Auckland law firm, Shieff Angland. 

I had an opportunity to see justice from another angle when appointed as a District Court Judge with a jury trial warrant in 1982.  As a lawyer and later as a judge, I was intimately involved in the “doing of justice” and endeavouring to ensure that “justice was seen to be done.”  In both roles I was subject to an oath, the first “to truly and honestly conduct myself in the practice of a barrister and solicitor according to the best of my knowledge and ability.”  The second, as a judge, was to serve the Queen and to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will.”

As a prosecutor, while it was always satisfying to gain a guilty verdict, it was never right to seek that result at all costs.  The role of a prosecutor is not merely to be an advocate for the Crown, but to ensure that procedural justice is done, and that cases are decided upon sufficient evidence.  That, in particular, involves ensuring full disclosure of the Crown evidence, even when occasionally some of that information may not aid the prosecution case.

There is also the important matter of that of reviewing the decision to prosecute.  As one who has prosecuted many cases, I know how difficult those situations can be.  The Police have apprehended, arrested and charged a suspect and may be convinced they have the right person before the Court.  There are few occasions when that decision is not correct, but every case must be carefully reviewed and judgement is called for, including an assessment of the charges being laid.  It is for this reason that, for the more significant cases, the prosecutorial role is not carried out by the Police in New Zealand but rather by 16 independent law officers, the Crown Solicitors.

Some offences, particularly those involving violence or sexual assault against children, understandably and rightly generate public outrage.  It is at times when passions are running high that it is appropriate to remember the adage that the professional is one who keeps his or her head when everyone else is losing theirs.  United States Supreme Court Justice William O Douglas once said aptly in this context:-

"The function of the prosecutor is not to tack as many skins of victims as possible against the wall. [but] to vindicate the rights of the people as expressed in the laws and give those accused of crime a fair trial."

As a defence counsel, ensuring justice was different again.  Again, it was satisfying when one’s client was acquitted; but it was also not a result to be sought at all costs.  I am sure I represented people who were guilty although I do not recall ever representing anyone who told me they were guilty.  If they had, I am certain I would have advised them to seek other counsel.

As a defence lawyer, “best ability and knowledge” were called upon to not only advance the client’s case, but also to counsel them about the options before them.  When the evidence was clearly overwhelming, that advice might be to plead guilty and seek the clemency of the court for sparing everyone, and particularly the victim(s) of the crime, a lengthy and expensive trial.

As a judge, ensuring justice was different again.  When acting alone, it required one to honestly and fairly consider the evidence presented by both sides and come to a decision based on the law and then either acquitting or convicting the defendant before passing sentence in the case of the latter.

When presiding with a jury, the role of the judge as an impartial arbiter was further accentuated.  It required deciding points of law regarding the admissibility of evidence and the wider conduct of the trial to ensure the fairness for both prosecution and defence.  Most importantly, it called for summing up the case fairly and explaining relevant points of law to the jury and directing them to deal with facts as presented, rather than any sympathies or prejudices for either the victim or the accused.

By way of contrast, I have never forgotten listening to the chilling words of legendary South African counsel, Sydney Kentridge QC, who acted for the late Steve Biko, speaking of the lamentable state into which practice in the courts of South Africa in the 1970s had fallen.  He said that far from being places upholding justice as something seen to be done, it had become a case of observing justice which had to be seen to be believed.

New Zealand's legal system is substantially based on the adversarial form of justice.  Two competing arguments are placed before either judges or juries who then decide upon the merits of the case. While recognising that no system is perfect, I believe that it is one that has served New Zealand well. 

At the same time, as you will no doubt discuss during Wednesday’s session on dispute resolution, New Zealand has been an international player in adapting that system to incorporate alternative means of resolving disputes, such as mediation and arbitration.  As a judge, I was, of course, aware that imposing a decision often left parties somewhat less than satisfied.

In the criminal jurisdiction, where the dispute is between the Crown, and an individual alleged to have broken the law, judges have often been aware that a third party—the victim—deserves consideration and recognition.  While preserving the essential dispute between the Crown and the alleged offender, a variety of mechanisms have become instituted to ensure that the victim's voice is heard. 

No system is perfect, but I believe that the growing recognition of victims in our court system is an improvement on what it was when I graduated in 1970.  In particular, the way that victims of family violence and sexual offences are treated today, by the Police and Courts, as a result of changes in Police and court processes as well as in the law, particularly in evidential matters, have shown that our standards of justice are always evolving.

In the civil jurisdiction, judges are always keen to explore opportunities that bring the parties together to resolve their differences, and so avoid the need for a formal ruling.  Sometimes, however, each side's position has become so entrenched, that it is often difficult to get the two sides to meet, let alone discuss their dispute objectively.

Some of the greatest advances in alternative dispute resolution have been made in the Family Court and Youth Court jurisdictions.  Both courts have made frequent use of mediation and restorative justice mechanisms to resolve disputes.  By getting people talking, and attempting to arrive at orders that are agreed upon, rather than imposed, there is a far better chance of creating a lasting resolution.  In turn, restorative justice has increasingly moved from the family and youth court jurisdictions into the wider district court criminal jurisdiction.

Many parts of New Zealand’s wider court system—the Environment, Employment and Māori Land courts, the Waitangi Tribunal and the Disputes Tribunal—regularly use alternative dispute resolution techniques to resolve disputes. 

My time as a hands-on member of the regular legal community was followed, in 1995, with two five year terms as an Ombudsman.  Again, I took an oath, this time to “faithfully and impartially perform the duties of [the] office” as well as to maintain the secrecy of the information the Office received.

As an Ombudsman I was involved in registering complaints by members of the public about unfairness wrought by either central or local government agencies.  Because the Ombudsmen in New Zealand have jurisdiction for freedom of information I was also involved with many cases to do with the provision of official information, and arguments about that. 

My colleagues and I regularly used more informal means of dispute resolution.  The power to compel a council or government agency to furnish documents and information during investigation was infrequently invoked.  Likewise the Ombudsman's power to require people to give statements under oath was rarely used.

Following the lead set by New Zealand's first holders of that office, Sir Guy Powles, Sir George Laking and Sir John Robertson, Ombudsmen use powers of persuasion to arrive at mediated outcomes.  Both central and local government agencies have come to recognise that an Ombudsman's investigation is not necessarily a black mark to be feared, but an opportunity to look afresh at administrative practices—and at what may have happened and why, and to make amends when things are found wanting.

Unlike the adversarial approach adopted in the courts, the work of the Ombudsman was inherently inquisitorial.  I like to explain my own opinion of the difference between a Judge and an Ombudsman—the former having a set jurisdiction and a limited number of powers and the latter unlimited jurisdiction and no powers at all except persuasion. 

More widely, however, the Ombudsmen play a vital role in connecting the public and the executive and the wider public sector. In any democracy it is important that everyone feels they have a channel through which they can pursue issues or voice concerns.

The Office of the Ombudsmen provides one such avenue for individuals aggrieved with their treatment to seek justice.  Through contact with a range of citizens, the Ombudsmen contribute significantly to the governance of the public sector with human rights being a core concern, particularly in responding to complaints on the actions of authorities such as police, customs, prisons or immigration officials.  In dealing with complaints from prisoners about their treatment by the Corrections Department, for example, correspondence between the prisoner and Ombudsmen is not opened by prison staff as it leaves or enters prisons.

My time as an Ombudsman was followed in August 2006 with my appointment as New Zealand’s 19th Governor-General.  In this role, I sit at the central point of New Zealand’s system of government and see the concept of justice from another different perspective.  Again, there was an oath to swear, to not only faithfully and impartially serve The Queen, but also to serve “the people of the Realm of New Zealand, in accordance with their respective laws and customs.”

On the advice of the Prime Minister, for example, I am asked give the Royal assent to legislation passed by New Zealand’s Parliament, including amendments to legislation regarding crimes and the processes of justice more widely.  On the advice of the Attorney-General I appoint all of New Zealand’s Judges, and on the advice of the Prime Minister supported by the Minister of Police, the Commissioner of Police.

In the Governor-General’s community role, I have chosen to be Patron of a recruit wing at the Royal New Zealand Police College and also the New Zealand Prisoners Aid and Rehabilitation Society. 

From another perspective, as Governor-General, a key constitutional duty is to respond, on the advice of the Minister of Justice, to requests for exercise of the Royal prerogative of mercy.  The Royal prerogative is an important and ancient constitutional safeguard in New Zealand's criminal justice system and provides a special avenue for criminal cases to be re-opened where a person may have been wrongly convicted or sentenced.

In recognition of the importance of this right, I have encouraged the Ministry of Justice to introduce a plain English form for making prerogative applications.  The inside front cover now includes a direction in several languages for those not fluent in English on where they can receive assistance in completing the form.  The form is freely available on the Government House website.

This last point about different languages raises a key issue and challenge related to justice.  In recent years, New Zealand has become a substantially diverse and multicultural nation, with a complex array of different ethnicities, cultures and religions.  In addition the way in which New Zealanders organise their personal relationships have also changed with more de facto relationships and, in recent years, the option for all couples, including same-sex couples, to enter into civil unions.

More than one in five people living in New Zealand today were born overseas.  A century ago, most overseas-born New Zealanders hailed from Britain and Ireland.  By the time of the last Census, that had dropped to 28.6 percent—the same proportion as New Zealanders born in Asia.

As someone who was born in New Zealand, but is the son and grandson of migrants from Fiji and India respectively, I believe that this increasing diversity enriches our nation.  But as a former lawyer, judge and ombudsman, I am equally aware of the challenges it places on those for whom justice is a primary concern.

New migrants may find New Zealand's society and its systems for resolving disputes, and particularly the legal system, baffling.  When the difficulties of speaking English as a second language are combined with different cultural and religious values, the potential for a confusing and combustible mix increases significantly.

Assisting those people, so that they are fairly treated, is an onus on all those involved in the justice system.  However, as experience of international relations shows, cross-cultural communication is a fraught area where customs and practices common to one culture can easily be misinterpreted by another.

Ensuring justice for those with a different cultural background does not mean that the democratic values New Zealanders have long cherished should be cast aside.  But it does require an understanding of different values and cultural norms and an openness to listen and, if possible, accommodate the views of others.  It also underscores the importance of ensuring that those who work in the justice system—police, lawyers, judges and others—are representative of society at large.  For example, while there are now a number of and lawyers and judges of Indian descent in New Zealand, when I was admitted as a barrister and solicitor in 1970, you could have counted the number of Indian lawyers in Auckland on one hand and the rest in New Zealand on the other. 

In conclusion, this brief and admittedly partial survey from my life experience shows that justice is not fixed.  For example, each of the oaths I have taken as my career has progressed have directed me to do justice in the widest sense, but often to differing ends, means and audiences.  Different people with different backgrounds will inevitably have different views on what concepts such as justice and fairness mean to them.

Equally, at a societal level, standards of justice are always evolving and adapting to meet new circumstances.  For New Zealand, which inherited the Westminster common law tradition, such change is a feature of our constitutional development, as we have moved from being a dependent colony to an independent nation.

To close, I will quote the great American Supreme Court Justice, Oliver Wendell Holmes Jr.  In the 1918 case of Towne v Eisner 245 US 418, Justice Holmes used a magical metaphor to give the definition of a word.  I believe, however, that the phrase could also be used to equally describe the concept of justice and how it is constantly changing and evolving.  Holmes wrote: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.”

And on that note, and what I trust is suitable encouragement for your discussions over the next three days, it gives me great pleasure to declare the Justice in the Round Conference here at Te Piringa—Faculty of Law at the University of Waikato officially open.

And with the formalities complete, 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.