Supreme and Federal Court Judges Conference

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: Hon Justice Stephen Rothman, Chair of the Conference Organising Committee and your fellow committee members, notably Justice Paul Heath, the New Zealand representative; Ministers of the Crown, Hon Christopher Finlayson, Attorney-General and Hon Tim Groser, Minister of Trade; Judges from the superior courts of Australia, New Zealand and the Pacific; Distinguished Guests otherwise; Ladies and Gentlemen. 

It has been a great pleasure to accept the invitation to attend the Supreme and Federal Court Justices Conference here in Wellington today.

To our overseas guests, while a number of you may be acquainted with New Zealand and may have visited before, I trust you may also have the opportunity to experience a little more of our country while you are here.  It is also good to see here a number of friends and familiar faces from the legal community in Australia and New Zealand.

As Governor-General of New Zealand, I have been asked to officially open this conference, but before I do, I would like to touch on the some of the issues to be discussed.

In preparing what I might say this morning, I was first interested to review the conference programme.  The wide array of topics to be covered and the quality of the speakers are impressive.  I look forward to reading contributions made over the next three days when the proceedings come to be published.

Some of the matters to be considered, such as the needs of vulnerable witnesses, dealing with accused people who are mentally impaired and wider cultural issues are as much an issue today as they were when I was a Judge in the 1980s and 90s.  Likewise, items such as access to justice and undertaking extra-judicial activities while serving on the Bench, remain ongoing and live issues.

Other things, however, are entirely new.  The mapping of human genome, which is to be subject of a paper to be delivered on Wednesday by Professor Mark Henaghan, Dean of Law at the University of Otago, has raised a host of legal, ethical and social issues that were not on the radar 20 years ago.  As with many things related to biological and scientific discoveries, statutory law has often struggled to keep pace with advances, often placing the courts in the difficult role of resolving disputes where there are few precedents, if any.

Other issues, while old, have been given a new face by the advent of the internet and new technology.  As Wednesday morning’s session on cyber crime will no doubt underscore, fraud and child pornography have long been a scourge on modern societies.

But the advent of email and the internet has allowed people with an illegal purpose to enter homes and businesses in a way unimaginable a few years ago.  Moreover, they can often perpetrate their crimes in jurisdictions many thousands of miles away.  Despite the implementation of laws against unsolicited emails, and publicity about fictitious get-quick-rich-scams, that such emails continue to arrive in our inboxes suggests sadly that people continue to be defrauded.

Another area where old items have been given a new perspective by the internet is in the relationship between the courts and the media.  More than a decade ago, the New Zealand courts began opening access to the electronic media—radio and television—as well as to newspaper photographers.  This initiative was first distilled in guidelines in May 2000, and three years later in the more comprehensive In-court Media Coverage Guidelines (2003).

These guidelines do not derogate from the presiding judge’s power to control court proceedings, including discretion over media attendance and coverage, so as to ensure a fair trial and to protect the integrity of the judicial process.   The guidelines also recognise, however, that freedom of the press is an integral part of our democracy and the role the media plays in ensuring justice being seen to be done and raising public understanding of the work of the courts.

Where all courts are being tested is the speed with which information can be published on the internet.  While a judge may decide at the end of a witness giving evidence to suppress part of what they have said or their name, those orders can be undermined if a reporter or someone else in the courtroom has gone outside and published those details in a blog or on social media such as Facebook or Twitter.

Likewise, whilst judges can suppress names and evidence in their courtrooms and can control what is published by media in their jurisdiction; they have no control over what is published overseas.  While this was the case in the past, with foreign media often reporting suppressed information from controversial cases, local access to those stories was very limited.  The internet, however, means that anyone, anywhere, can access such confidential information and there is little the courts can do to restrict access.

One issue in which I have a particular interest is judicial education, which will be subject of a presentation tomorrow  by Chief Justice Wayne Martin, of the Supreme Court of Western Australia, and Hon Susan Glazebrook, Judge of the Court of Appeal of New Zealand, who chairs New Zealand’s Institute of Judicial Studies.

When I was appointed to the District Court Bench with a Jury Trial Warrant in 1982, there was little provision of judicial education.

As a lawyer, I had maintained an interest in the development of continuing professional education programmes to help further the courtroom skills of barristers and solicitors.  As a Judge, I continued this interest in professional education and became responsible for the Judicial Orientation Programme, and parts of the Judicial Education Programme.  I later had the opportunity of working with, and on, Australian Institute of Judicial Administration programmes in the early 1990s when Professor Peter Sallman was the Executive Director.  I was a member of the judicial study group led by Sir Ivor Richardson whose work has led to the Institute of Judicial Studies.

The need for continual education brings me to my final point.  While this annual conference was established sometime ago as an Australian gathering, it has grown to include judges from the superior courts of New Zealand and the Pacific.  Represented here today are Justices from the Supreme Courts from all six Australian states and the Australian Capital Territory and the Northern Territory as well as judges from the Federal Court of Australia.  Also represented are Justices of New Zealand’s High Court, Court of Appeal and its new final court of appeal, the Supreme Court as well as judges from the Supreme Court of Samoa and the High Court of the Solomon Islands.

That the superior court judges from Australia, New Zealand and the Pacific should gather for a conference reflects more than our shared geography.  It also reflects our ancestry as nations that have inherited the Westminster common law tradition, in turn adapting it to our own circumstances.  Much of the joy of a conference such this is seeing our different jurisdictions have approached similar problems and issues and learning from them.

That common ancestry also have been seen in February last year when Justices of the Supreme Court of Canada, the High Court of Australia and the Final Court of Appeal of Hong Kong travelled to New Zealand to attend the first formal sitting of the Supreme Court of New Zealand in its new home in Wellington’s parliamentary and judicial precinct.

That common ancestry means we have much to learn from each other.  It does not mean we have to agree, and it does not mean the decisions of foreign courts, even when considering similar issues, should be seen as binding. 

The point has been well made by two eminent contemporary legal personalities. The first is a comment by the Rt Hon Lord Bingham of Cornhill, the former Lord Chief Justice of England and Wales, in the 2009 Hamlyn Lecture from which I quote as follows:

“[M]uch as we may care to think of our law as a pure-bred, home-grown product of our national genius, the truth is otherwise.  It is a mongrel, gaining in vigour and intelligence what it has lost in purity of pedigree.  As a trading nation, we have not over the years been immune to foreign influences, but have responded to them when it appeared that a little discreet borrowing would improve our law.””

The second is from a legal mind closer to home, namely Hon Michael Kirby, a recently retired Judge of the High Court of Australia.  In what has been called a “public conversation” in February last year with Justice Antonin Scalia, Associate Justice of the United States Supreme Court, Justice Kirby critiqued Justice Scalia’s criticism of foreign judicial opinions as “meaningless dicta.”

Justice Kirby emphasised that the legal thinking of Australian and other Commonwealth judges was constantly stimulated by reading the reasons given by judges in other common law jurisdictions.  It is an approach, he said, that came naturally to Australian judges and, may I add, to their New Zealand and Commonwealth colleagues as well.

Justice Kirby added and I quote: “There is now a global constitutional discourse, including amongst judges.  Why should they have to reinvent every doctrinal wheel when they can have access to the thinking and reasoning of very clever judges in other lands to help in their own judicial reasoning? .… Not all wisdom is home-grown.  Occasionally we can all learn from others.” 

Accordingly on what I trust is a note that bodes well for some learned and stimulating discussion, it gives me great pleasure to declare the Supreme and Federal Court Judges Conference open.

And having completed the formalities, 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.