Student perspective: Listening to the Chief Justice

Peter McKenzie, who is studying toward a LLB/BA conjoint degree at Victoria University of Wellington, discusses the Rt Hon Dame Sian Elias’ recent talk on ‘Judicial Review and Constitutional Balance’ held at the Law School.

Dame Sian Elias speaks at Victoria University of Wellington.

Partway through speaking to a room packed with lawyers specialising in public law, Dame Sian Elias, who has since retired as Chief Justice of New Zealand, glanced up and slyly commented, “I don’t really think there is such a thing as public law.”

From anyone else, it would have caused an awkward moment. From Dame Sian, it brought the house down.

Dame Sian has retired from the bench after 18 years as New Zealand’s first female Chief Justice. It is a cliché to describe her tenure as unconventional. Both off the bench (see the ‘Blameless Babes’ controversy) and on it (see her recent affirmation of the High Court’s power to issue a declaration of inconsistency), she has spoken truth to power regardless of what others think.

Dame Sian continued that habit as she spoke to the packed room of lawyers and friends at an address hosted by the New Zealand Centre for Public Law at Victoria University of Wellington. The title of the lecture, ‘Judicial Review and Constitutional Balance’, provided a meagre indication of the Chief Justice’s intentions. In the end, it was vintage Elias.

Her preliminary clarification, “I do not put the judiciary at the centre of the constitutional system”, was perhaps necessary given the mischaracterisation she has been victim to in past. She nonetheless explained that while the judiciary’s supervisory role “is weak, it is an essential safety net” and, crucially, that this supervisory role faces two major threats.

The first is the legislature’s unfortunate and increasing tendency to oust judicial oversight through privative clauses in legislation. In her understated way, Dame Sian remarked that such clauses have weak standing in constitutional territory, reflecting the way some judges have worked their way around them over the last half century or so. It was a statement with potentially profound judicial consequences, though conditioned with the wry comment that “there is plenty of disagreement” over what is or is not ‘constitutional’.

The second is a “loss of judicial nerve”: an unwillingness to assert the judiciary’s crucial role or to debate the constitutional principles which undergird New Zealand’s common law system. Dame Sian worries that many judges and academics are falling into “the pitfalls which arise out of vanity”: a desire for eloquence, simplicity and clarity which obscures history and principle; and a “temptation towards overconcentration on the latest case or law review article” that hinders the type of original thinking necessary to take the judiciary and wider legal profession forward.

Dame Sian made clear that it is only by overcoming these threats that the judiciary can tackle the 21st century’s looming legal challenges. In keeping with her career-long focus on restraining the powerful, she focused on just one of those challenges: the fact that natural and commercial persons can now aspire to influence matching or exceeding that of the state.

Setting her notes down and looking out at the assorted Wellington luminaries, the Chief Justice suggested that the judiciary ought to be more willing to look past the nature of a body exercising power, and focus more strongly on the nature of the power being exercised. In an increasingly privatised world, governed by global organisations wielding the power of big data, there are few challenges with such scale or urgency.

Dame Sian had begun her speech by joking that she had “always hated the endgame in chess, and the endgame for a Chief Justice is just as tedious.” But it was clear from the standing ovation she received that if Dame Sian found her speech tedious, she was the only person in the room to feel that way.

Dame Sian Elias’ address can be viewed at: